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2021 DIGILAW 462 (ORI)

Biraj Sardar v. State Of Odisha

2021-11-10

SASHIKANTA MISHRA

body2021
ORDER Sashikanta Mishra, J.- In the present application filed under Section 482 Cr.P.C., the petitioners challenge the order dated 03.03.2021 passed by learned Sessions Judge-cum- Special Judge, Malkanagiri in T.R. Case No. 72 of 2020 with further prayer to release him on bail under the provisions of Section 36-A(4) of N.D.P.S. Act read with Section 167 (2) of Cr.P.C. The petitioner has been implicated in the above mentioned case corresponding to Mathili P.S. Case No.106 of 2020 for the alleged commission of offence under Sections 20(b)(ii)(C)/27-A of the N.D.P.S. Act. 2. Briefly stated the prosecution case is that on 27.07.2020 at about 10.30 p.m. at Gobindapali Forest Check Gate while the S.I. of police was on night patrolling duty and M.V. checking duty, two vehicles came in high speed from Gobindapali side to Jeypore. On suspicion, the S.I. of police detained the vehicles. On verification, it was found that two plastic bags were loaded and pungent smell was coming out. On weighment, it was found that 12 packets of ganja was being carried in all weighing 297 KGs 100 grams of ganja. On such basis, the case was registered and the accused person was arrested and forwarded to the court of learned Special Judge, Malkanagiri on 28.07.2020. Since then the accused petitioner is in custody. 3. The case record was put up on 22.01.2021 as the I.O. submitted a prayer for extension of the remand period of the accused by another 180 days on the ground of further investigation. The said petition was considered on 25.01.2021 and on the same day it was allowed by extending the period of investigation by another 30 days beyond the stipulated period of 180 days with further observation that there shall be no further extension. On 17.02.2021, the I.O. filed another petition for extension of another 180 days for submission of prosecution report/final form. On 18.02.2021, the Learned Sessions Judge-cum- Special Judge, Malkangiri granted further period of 15 days to the Investigating Officer to submit the charge sheet. On 03.03.2021, applications for default bail under Section 167(2) was filed by the petitioner, which was rejected by the learned Sessions Judge-cum- Special Judge, which is impugned in the present application 4. Heard Mr. N.R. Sah, learned counsel for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel through hybrid mode. 5. It is submitted by Mr. On 03.03.2021, applications for default bail under Section 167(2) was filed by the petitioner, which was rejected by the learned Sessions Judge-cum- Special Judge, which is impugned in the present application 4. Heard Mr. N.R. Sah, learned counsel for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel through hybrid mode. 5. It is submitted by Mr. Sah that the day of first remand being 28.07.2020, 180 days was due to expire on 24.01.2021. The I.O. filed a petition seeking extension of time to complete investigation on 22.01.2021 i.e., within the 180-day period. It is further submitted that the said petition was considered and allowed on 25.01.2021, which is one day after the expiry of 180-day period. On such basis, Sri Sah has argued that the indefeasible right of the accused-petitioners to be released on bail for the default of the investigating agency was completely ignored by the Court below and the prayer for extension was allowed ignoring the statutory provisions as well as the settled position of law. To fortify his contention, Sri Sah has cited a decision of this Court rendered in the case of Lamodar Bag v. State of Orissa, reported in (2018) 71 OCR 31. 6. Mr. Sangram Keshari Mishra, learned Addl. Standing Counsel, on the other hand, has argued that the petition for extension was filed for justified reason since several relevant aspects were required to be verified. Moreover, the initial investigation had revealed that other persons were also involved in the occurrence. For all the above reasons, it was highly necessary to allow extension of the period of investigation and therefore, the impugned order does not warrant any interference. 7. Certified copies of the relevant orders have been annexed to the CRLMC petition vide Annexure-3 series. A perusal of the same reveals that the accused persons were remanded to judicial custody for the first time on 28.07.2020. As such, the period of 180 days was due to expire on 24.01.2021. Admittedly, the petition for extension of time to complete the investigation was heard and allowed two days after completion of the 180-day period. A perusal of the same reveals that the accused persons were remanded to judicial custody for the first time on 28.07.2020. As such, the period of 180 days was due to expire on 24.01.2021. Admittedly, the petition for extension of time to complete the investigation was heard and allowed two days after completion of the 180-day period. There is nothing on record to show that the learned Court below informed the accused at that time that he had a right to be released on bail for non-filing of charge sheet under Section 167 of the Cr.P.C. read with Section 36/A(4) of the NDPS Act, since the 180 days period had elapsed. Nevertheless, the learned court below is said to have allowed the petition vide order dated 25.01.2021 by extending the period of investigation by 30 days. Again, such 30 days period was due to expire on 23.02.2021 but on 17.02.2021, the prosecution filed a petition for extension which was allowed by granting 15 days further time. Finally, on 03.03.2021, the accused filed a petition seeking his release on bail as per Section 167(2) of Cr.P.C., but the same was rejected by the learned Special Judge vide order passed on the same day by holding that the extension petition has been allowed firstly by 30 days and then by 15 days. Said order is impugned in the present application. 8. It is evident from the above narration that the period of 180 days expired on 24.01.2021 but the accused was not produced before the court on that day nor was his entitlement to be released on bail under the provisions of Section 167 (2) of Cr.P.C. informed to him. Further the first petition for extension of time was allowed two days after expiry of the stipulated period of 180 days and without informing the accused of his right to seek default bail. Thus, the very inception of detention beyond the 180-day period is rendered illegal. Therefore, the subsequent spells of remand are also rendered illegal. 9. Further the first petition for extension of time was allowed two days after expiry of the stipulated period of 180 days and without informing the accused of his right to seek default bail. Thus, the very inception of detention beyond the 180-day period is rendered illegal. Therefore, the subsequent spells of remand are also rendered illegal. 9. The apex Court as well as this Court have time and again emphasized that the right of the accused to be released on bail under the provisions of Section 167(2) of Cr.P.C. is indefeasible and akin to fundamental right flowing from Article 21 of the Constitution of India.Moreover, despite absence of specific provision under Section 36A it is necessary for the court to inform the accused of such entitlement immediately after completion of 180 days. These fundamental aspects have been given a complete go bye by the learned Special Judge. It is also seen that the petition for extension of time was filed on 22.01.2020 considered and allowed after expiry of the stipulated period. For all these reasons, therefore, the order passed on 03.03.2021 is rendered unsustainable in the eye of law and hence, deserves to be interfered with. It is reiterated that the indefeasible right of the accused as referred to hereinbefore, flows from the fundamental right to liberty as enshrined under Article 21 of the Constitution of India and therefore, cannot in any manner be taken lightly or dealt with in a mechanical manner. 10. For the forgoing reasons, therefore, this Court has no hesitation in holding that the learned court below committed gross illegality in entertaining the petition filed by the I.O. for extension of time to complete the investigation after expiry of the stipulated period of 180 days and in remanding the accused to further detention without informing him of his indefeasible right. Once it is so held, all subsequent extensions of time to complete investigation and orders of remand of the accused are also rendered illegal. 11. In the result, the CRLMC is allowed. The impugned order dated 03.03.2021 is hereby set aside. The petitioner is at liberty to move the trial Court for bail and in such event, he shall be released on such terms and conditions as may be fixed by the Court including the condition that he shall personally appear before the trial Court on each date of posting of the case without fail. 12. The petitioner is at liberty to move the trial Court for bail and in such event, he shall be released on such terms and conditions as may be fixed by the Court including the condition that he shall personally appear before the trial Court on each date of posting of the case without fail. 12. The CRLMC, is therefore, disposed of.