Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 28TH DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 CRL.MC NO. 2018 OF 2023
JUDGMENT IN SC 1127/2022 OF ADDITIONAL SESSIONS COURT -
VIII, ERNAKULAM PETITIONER/S: AASHIK AGED 32 YEARS S/O.AKBAR, HOUSE NO.13/423, KOCHANGADI COLONY, CHULLIKKAL, THOPPUMPADY, NOW RESIDING AT HOUSE NO.7/778 OF SALAM, MARAKKADAVU, MATTANCHERRY, PIN - 682002 BY ADVS. LINU G. NATH T.D.ROBIN RESPONDENT/S: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN, PIN - 682031 BY ADV PUBLIC PROSECUTOR OTHER PRESENT: SRI. RENJIT GEORGE (SR GP) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.03.2023, THE COURT ON 28.03.2023 PASSED THE FOLLOWING: -2-
ORDER
Dated this the 28th day of March, 2023 The petitioner is the fourth accused in Crime No.352 of 2022 of Kuruppampady Police Station, now pending as SC No.1127 of 2022 on the files of
the VIII Additional District and Sessions (Fast Track-II) Court, Ernakulam. The crime is registered on the allegation that, the ganja
weighing 248.165 kg was seized from a lorry on 15.04.2022, while the vehicle was being driven by the first accused. The petitioner and other accused are implicated on the allegation of having entered into a criminal conspiracy for committing the offence. The specific allegation against the petitioner is that he had sent an amount of Rs.66,500/- to the second accused for
procuring the contraband. The petitioner was arrested on 30.04.2022 and was remanded to custody on 01.05.2022. The statutory period of -3- 180 days for detention was to be over on 27.10.2022. In the meanwhile, the prosecution filed a report under Section 36A(4) of the NDPS Act seeking extension of the time limit for completing the investigation and continuing the
detention of the petitioner. By Annexure I order
dated 15.10.2022, the Sessions Judge extended the time limit by one month. Thereafter, prosecution filed the charge sheet on 04.11.2022. Later, the petitioner filed an application under Section 167(2) of Cr.P.C alleging that the charge was defective and there is no proper compliance of the mandatory requirementS of Section 36A(4) in the report submitted by the Pubic Prosecutor. That petition having been dismissed by Annexure II order, this Crl.M.C is filed, praying to quash Annexures I and II orders.
2. Adv.T.D.Robin, learned Counsel for the
petitioner, contended that Annexure I order is liable to be quashed as it does not satisfy the -4- twin conditions of indicating the progress of investigation and stating specific reasons for detention of the accused beyond the period of 180 days. Further, the Public Prosecutor had merely reproduced the report submitted by the investigating officer.
3. Learned Public Prosecutor submitted that the challenge against Annexure-III is not sustainable at this point of time, as the investigation is complete and final report filed.
Even otherwise, sufficient reasons had been stated in Annexure-III and the Sessions Judge had extended the period for investigation, on being convinced about the reasons.
4. Going by the indisputable facts, no application for default bail under Section 167
(2) Cr.P.C was pending as on the date of completion of 180 days. Probably for the reason that, even prior to that date the petition for extension of the period of investigation, filed -5-
by the prosecution, had been allowed as per Annexure I. But, no application for bail was submitted even during the extended period. Moreover, Annexure I was not challenged
immediately. Instead, the petitioner waited till the extended period was over. In the meanwhile, the final report was also filed. As such, the petitioner's right to default bail got extinguished on the filing of the final report.
5. In this context, it will be beneficial
to refer the decision of the Apex Court in Bikramjit Singh v. The State Of Punjab [(2020) 10 SCC 616] wherein, after elaborate consideration of the scope and ambit of Section 167(2), it is
held that the right to default bail becomes
complete and indefeasible as soon as an application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. Earlier, in Hitendra -6- Vishnu Thakur and others v. State Of Maharashtra and others [1994 4 SCC 602], the Supreme Court has held default bail to be a right which inures to and remains enforceable by the accused only from the time of default till the filing of the final report and does not survive or remain enforceable after filing of the final report. It is therefore beyond cavil that, the indefeasible right to default bail would arise only if an application for such bail is submitted on or after expiry of the statutory period and if no such application is submitted, the right will get extinguished with the filing of the final report.
For the aforementioned reasons, the challenge against Annexures I and II orders is rejected. Consequently, the Crl.M.C. dismissed. Sd/- V.G.ARUN JUDGE Scl/ -7- APPENDIX OF CRL.MC 2018/2023 PETITIONER ANNEXURES Annexure-I TRUE COPY OF THE ORDER DATED 15.10.2022 IN CR.M.P.NO.2838/2022 ON THE FILE OF THE SESSIONS COURT, ERNAKULAM. Annexure-II TRUE COPY OF THE ORDER DATED 8.12.2022 IN CRL.M.C.NO.2742/2022 ON THE FILE OF IST ADDITIONAL SESSIONS COURT, ERNAKULAM. Annexure-III TRUE COPY OF THE REPORT IN CRL.M.P.NO.2838/2022 IN CRIME 352/2022 FILED BY THE PROSECUTION UNDER SECTION 36 A(4) OF NDPS ACT.