TMI Blog2012 (9) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... e courier shipping bill. The consignor was found to be fictitious and the contents of the consignment is alleged to be 6 kgs. Ketamine Hydrochlorid. The second consignment was destined to UK which contained the contents of the Methamphetamine Hydrochloride of 37 kgs. were also description of the courier and all contents of cargo did not match and the consignor was found to fictitious. One Manibhai Sharma @ Bakabhai is alleged to have gone with the consignment and the documents. The officers of DRI also learnt that he is the manager of M/s. Anshanu Exports. His statement was recorded under Section 67 of the NDPS Act wherein he has stated that he was working as per the instruction of the present petitioner. The premise of manufacturer shown on one of the consignments namely M/s. Kumud Drug Pvt. Ltd., Sangli was raided recovering 432 kgs of Methamphetamine Hydrochloride. In the follow up action on 05/12/11 a premises at 10, Amrut Appartment. Opposite Red Cross Society, Gujarat Society, Paladi, Ahmedabad was searched and there was a seizure of a consignment/package consisting of 48 kgs of Alprazolam. The present petitioner was apprehended on 15/12/11 alongwith his wife and hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chargesheet was placed before the Principal District Judge, City Sessions Court on 31st May 2011, who directed this to be placed before the Court of learned Judge Shri M. P. Sheth after registering the same as NDPS Sessions case and as this chargesheet is submitted within stipulated period, no benefit under Section 167(2) would be available to the present applicant. He, therefore, urged the Court that this application deserves no meritorious consideration. 5. Before adverting to the submissions of both the sides, it would be necessary to refer to the provision of Section 167(2) of Code of Criminal Procedure at this stage :- Section 167(2) : The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : Provided that :- (a) the Magistrate may aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence, the chargesheet is required to be filed within 90 days or otherwise within 60 days; as the case may be. And, an order for release on bail under the proviso (a) to Section 167(2) is termed as an order of bail on default, which would entitle an accused to be enlarged on bail on default of the prosecution in filing the chargesheet within prescribed period. The right to bail under Section 167(2) proviso (a) since is absolute, the accused should be entitled to release on bail in the event of such period of filing of chargesheet not being adhered to by the investigating agency. However, when the chargesheet is filed within statutory period, Section 167(2) would not apply and there are settled case laws, which contemplates that Section 167(2) proviso (a) is not absolute one which can be exercised before the filing of chargesheet and if there there is no order releasing him on bail once the chargesheet being filed, the bail can not be granted under the default clause. In this regard, the case of Central bureau of Investigation, Special investigation Cell I, New Delhi Vs. Anupam J. Kulkarni (Supra) shall have to be recorded at this stage, wherein the Apex Court has held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 90 days wil begin to run only from the date of the order of remand. This is also evident if one reads the last five lines of para 24 of the reported decision. Chaganti Satyanarayana has been subsequently followed in the following four decisions of this Court : (1) CBI v. Anupam J. Kulkarni para 13, placitum c where it has been authoritatively laid down that (SCC P.159) The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. (2) State v. Mohd. Ashraft Bhat, SCC para 5; (3) State of Maharashtra v. Bharati Chandmal Verma, SCC para 12; and (4) State of M.P. v. Rustam, Supp SCC para 3. Para 53 : Section 167(2) is one, dealing with the power of the learned Judicial Magistrate to remand an accused to custody. The 90 days' limitation is as such one relating to the power of the learned Magistrate. In other words the leaned Magistrate cannot remand an accused to custody for a period of more than 90 days in total. Accordingly, 90 days would start running from the date of first remand. It is not in dispute in this case that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all. 7. In the instant case, thus, what can be deduced from the above mentioned decisions as well as provisions of the law that the chargesheet if is not filed within the stipulated period, the accused would acquire right to be released on bail. However, subsequent filing of the chargesheet before the grant of such bail would take away the right of release on default bail. The Apex Court has been categorically in case of Pragya Singh Thakur (supra) referring and reiterating various decision on the subject that once the chargesheet is placed within stipulated period, Section 167(2) does not come into the picture and even if such right would accrue, if the chargesheet is filed in the interregnum period before releasing the accused on bail, such right can not be said to be indefeasible and the same would get lost if the chargesheet is filed and thereafter, case of accused would require consideration only on merit and not as a default bail. Thus, following aspects emerge in connection with default bail :- [a] Section 167 (2) empowers the Magistrate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He had accepted the chargesheet and directed the numbering of Sessions Case. This can not said to be only on an administrative Act and having no ramification on the legal issue. The case after having been registered as Sessions Case No. 5/2012, if was alloted to the concerned judge on 16th June 2012 that would not give any indefeasible right to the applicant herein to be enlarged on default bail. 9.1 Admittedly, the chargesheet was laid before the stipulated period and, at this stage, what was required to be done by the investigating agency was already done, adhering to the statutory requirements of placing the chargesheet against the applicant within a period of 180 days and therefore, once the same having been placed as required, no right can say to have accrued only on the ground that the Principal Judge was performing administrative task. 10. Here is not the case where the accused got a right of being enlarged on bail on default for the simple reason that the period of 180 days was not yet over and prior thereto, chargesheet was laid and therefore, application for bail of applicant-accused has to be decided on merit and not on account of default. 11. 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