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TMI Blog2018 (3) TMI 1886X X X X Extracts X X X X X X X X Extracts X X X X ..... release of bail on 19.09.2017 before the learned Trial Court under Section 439 of the Criminal Procedure Code, 1973 which was fixed for 26.09.2017. 2. Vide paragraph 4 of the application under Section 439 of the Criminal Procedure Code, 1973 dated 19.09.2017, the applicant submitted that he had been arrested by the police of the Crime Branch on 03.06.2017 and had been sent to judicial custody and that he was willing to join investigation as and when called by the Investigating Officer and that nothing had been recovered from his possession and, if any, the same was planted by the police and that he had not committed any offence which is punishable under the law and that he had clean antecedents and he was not a previous convict and that he has deep roots in the society and that there was no likelihood of his fleeing away from the Court of justice and that he is willing to join investigation as and when directed by the Court and that he undertakes to furnish the sound and reliable surety for the satisfaction of the Court and he is ready to abide by all the terms and conditions if imposed upon him by the Court and sought that he be released on bail. 3. Vide an application dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where.............;" 6. It was also contended thus on behalf of the petitioner that as in terms of Clause-21(b) of the NDPS Act, 1985, the possession of the narcotic manufactured drug involved a quantity "lesser than the commercial quantity but greater than the smaller quantity‟ he could be imprisoned for a term which may extend upto 10 years and with a fine of Rs. 1 lakh and that thus the applicant in terms of the Section 167(2) proviso (a)(ii) of the Criminal Procedure Code, 1973 had essentially to be released on statutory "default bail". 7. On behalf of the State, the application is vehemently opposed submitting initially inter alia to effect that the applicant was in possession of 250 gms. of a narcotic manufactured drug, which fell within the ambit of commercial quantity and thus the offence was punishable beyond a period of 10 years apart from imposition of fine. 8. At the outset, it is essential to observe that vide order dated 22.09.2017 the learned Trial Court has categorically observed to the effect that 250 gms of heroine allegedly recovered from the petitioner fell in the category of intermediary category and thus punishable under Section 21(b) of the NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67(2) proviso (a)(i) and Section 167(2) proviso (a)(ii) of the Criminal Procedure Code, 1973 which read as under : - "167. Procedure when investigation cannot be complete in twenty-four hours - (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 authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Magistrate and that if the charge-sheet has not been filed and the right of "default bail" has ripened into the status of an indefeasible right, it cannot be frustrated by the prosecution on any pretext and the accused can avail his liberty by filing an application stating the statutory period for filing the charge-sheet or challan had expired and the same had not yet been filed and, therefore, the indefeasible right had accrued in his favour and further that the accused was prepared to furnish the bail bond. Paragraph 53 (2) (b) of the conclusion of the verdict of the Hon'ble Apex Court in Sanjay Dutt's case was also adverted to as under : - "(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was thus specifically placed on behalf of the petitioner on Rakesh Kumar Paul Vs. State of Assam (supra) on similar facts with specific reference to paragraphs 40, 44 and 46 of the verdict. It is essential to reproduce paragraphs 40 to 47 & 49 of the verdict authored by HMJ Madan B. Lokur in this case which are as under : - "40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for "'default bail'‟ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court - he made no specific application for grant of "'default bail'‟. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as a habeas corpus petition. In Bandhua Mukti Morcha v. Union of India a petition addressed to a learned judge of this Court relating to the inhumane and intolerable conditions of stone quarry workers in many States and how many of them were bonded labour was treated as a writ petition on the view that the "Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straight-jacket formula". In People‟s Union for Democratic Rights v. Union of India a letter addressed to a learned Judge of this Court concerning violation of various labour laws in the construction projects connected to the Asian Games was treated as a writ petition. In Dr. Upendra Baxi (I) v. State of Uttar Pradesh a letter relating to inhuman conditions in the Agra Protective Home for Women was treated as a writ petition and in Sheela Barse v. State of Maharashtra a letter addressed by a journalist complaining of custodial violence against woman prisoners in Bombay was treated as a writ petition. These cases are merely illustrative of the personal liberty juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings." 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ''default bail'', to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav. Application of the law to the petitioner 45. On 11th January, 2017 when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of ''default bail'' since the statutory period of 60 days for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail." 15. The concurring verdict of HMJ Deepak Gupta in this case also lays down to the effect : - "106(23) The second issue which arises is whether the petitioner had applied for ''default bail'' or not. Admittedly, there is no such plea in the bail application, but it is also not disputed that this was the main argument at the time of hearing and this issue was specifically dealt with in the impugned order. In my opinion, once the High Court permitted the counsel for the petitioner to argue the petition on the ground of grant of ''default bail'' and no objection was raised by the counsel for the State then at this stage it cannot be urged that the petitioner never applied for ''default bail'' and is not entitled to ''default bail''. If this objection had been raised at that stage, either by the Court or by the State, the accused could have either filed a fresh application for grant of ''default bail'' or could have prayed for ''default bail'' by adding an additional ground in the exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to free legal assistance as a matter of right and adapting the principle laid in Mohammed Ajmal Mohammed Amir Kasab Vs. State of Maharashtra (1983) 2 SCC 308 and in Khatri Vs. State of Bihar (1981) 1 SCC 627 vide paragraph 44 thereof to the verdict in Rakesh Kumar Paul Vs. State of Assam (supra), it was observed to the effect that just as it is obligation of the Court to inform the accused that he or she is entitled to free legal assistance as a matter of right, this principle adapted would make it equally the duty and responsibility of a Court on coming to know that the accused person before it is entitled to "default bail" to at least apprise him or her of the indefeasible right and a contrary view would diminish the respect for personal liberty. 18. The observations in paragraph 111(28) and paragraph 112 (29) of the concurring judgment in Rakesh Kumar Paul Vs. State of Assam (supra) categorically spell out that the right to get "default bail" is a very important right and that ours is a country where millions of our countrymen are totally illiterate and are not aware of their rights and that the accused can be detained in custody so long as he does not furnish bail an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by the learned Trial Court and the aspect of the charge-sheet having not been filed till the said date which on completion of 60 days from the date of the arrest of the petitioner / the accused on 03.06.2017 had to be filed by 04.08.2017 ought not to have overlooked. The period of incarceration of the petitioner from the date 19.09.2017 when he sought the grant of bail implicitly also on the ground that he was arrested on 03.06.2017 and was willing to continue to join the investigation, indicating thereby that the investigation was not complete and did not set completed till submission of the charge-sheet on 20.09.2017 cannot be overlooked and thus cannot extinguish the indefeasible right of "default bail" to the petitioner. The petition is thus allowed and the petitioner is thus directed to be released on bail on submission of a bail bond for a sum of Rs. 50,000/- with one surety of the like amount subject to the satisfaction of the learned Trial Court and subject to the conditions that he shall not leave the country without permission of the learned Trial Court and he shall appear before the learned Trial Court as and when directed and shall submit his present address on an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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