1996 1 Crimes(SC) 9 ; 1996 CrLJ 1652 ; 1996 SCC(Cri) 200 ; 1996 1 Supreme 279
1996(1) Crimes 9 (SC)
SUPREME COURT OF INDIA
A.M. Ahmadi, CJI,
B.P. Jeevan Reddy & N.P. Singh, JJ.
Dr. Bipin Shantilal Panchal - Appellant
versus
State of Gujarat - Respondent
Criminal Appeal No. 26 of 1996
Decided on 8-1-1996
Counsel for the Parties;
For the Appellant: Ms. Meenakshi Arora, Advocate.
For the Respondent: H. Wahi, Advocate.
IMPORTANT POINT
Accused under NDPS Act, 1985 has a statutory right to be released on bail if charge sheet is not filed within maximum time allowed by law, provided he had moved an application before filing of charge-sheet. Since in this case appellant is in custody under other provisions of Cr. P.C. the said statutory right cannot be exercised now.
Act Referred :NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.37
(A) The case primarily revolves around the interplay between Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and the proviso to Section 167(2) of the Code of Criminal Procedure. Section 37 of the NDPS Act imposes stringent conditions for the grant of bail, requiring the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence. The appellant contended that the statutory period for filing a charge-sheet under Section 167(2) CrPC had expired, creating an indefeasible right to default bail that should override the restrictive requirements of Section 37 of the NDPS Act.
(B) The court affirmed that while Section 37 of the NDPS Act does not exclude the application of the default bail provision under Section 167(2) CrPC, the right to be released on default bail is temporary. This right exists only from the time of the prosecution's default until the actual filing of the charge-sheet. Once the charge-sheet is filed, any subsequent application for bail is governed by the standard bail provisions applicable at that stage, including the restrictive conditions of Section 37 of the NDPS Act.
Facts of the case:
The appellant was arrested on 8.11.1993 for offences under the NDPS Act. Bail applications were rejected by the City Sessions Judge and the High Court based on the stringent requirements of Section 37 of the Act. The appellant appealed to the Supreme Court, arguing that he was entitled to bail because the statutory period for filing the charge-sheet under Section 167(2) CrPC had expired before the charge-sheet was eventually filed on 23.5.1994.
Findings of Court:
The Court found that although the appellant may have had a right to default bail during the period of delay, he failed to exercise that right before the charge-sheet was filed. Following the precedent in Sanjay Dutt v. State, the Court observed that the right to default bail does not survive once the charge-sheet is filed. Since the charge-sheet had already been submitted, the appellant could no longer claim release under the default bail provision.
Issues:
1. Whether the restrictive provisions of Section 37 of the NDPS Act exclude the application of the default bail provision under Section 167(2) of the CrPC.
2. Whether an accused can exercise the right to default bail after the charge-sheet has been filed, if they failed to apply for it during the period of default.
Ratio Decidendi:
The right to be released on bail due to default in filing the charge-sheet is an enforceable right only from the time of default until the filing of the charge-sheet. If the accused fails to exercise this right within that window, the right ceases to exist upon the filing of the charge-sheet, and subsequent bail applications must satisfy the statutory requirements of the governing Act (in this case, Section 37 of the NDPS Act).
Result:
Appeal dismissed.
(A) The case primarily revolves around the interplay between Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and the proviso to Section 167(2) of the Code of Criminal Procedure. Section 37 of the NDPS Act imposes stringent conditions for the grant of bail, requiring the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence. The appellant contended that the statutory period for filing a charge-sheet under Section 167(2) CrPC had expired, creating an indefeasible right to default bail that should override the restrictive requirements of Section 37 of the NDPS Act.
(B) The court affirmed that while Section 37 of the NDPS Act does not exclude the application of the default bail provision under Section 167(2) CrPC, the right to be released on default bail is temporary. This right exists only from the time of the prosecution's default until the actual filing of the charge-sheet. Once the charge-sheet is filed, any subsequent application for bail is governed by the standard bail provisions applicable at that stage, including the restrictive conditions of Section 37 of the NDPS Act.
Facts of the case:
The appellant was arrested on 8.11.1993 for offences under the NDPS Act. Bail applications were rejected by the City Sessions Judge and the High Court based on the stringent requirements of Section 37 of the Act. The appellant appealed to the Supreme Court, arguing that he was entitled to bail because the statutory period for filing the charge-sheet under Section 167(2) CrPC had expired before the charge-sheet was eventually filed on 23.5.1994.
Findings of Court:
The Court found that although the appellant may have had a right to default bail during the period of delay, he failed to exercise that right before the charge-sheet was filed. Following the precedent in Sanjay Dutt v. State, the Court observed that the right to default bail does not survive once the charge-sheet is filed. Since the charge-sheet had already been submitted, the appellant could no longer claim release under the default bail provision.
Issues:
1. Whether the restrictive provisions of Section 37 of the NDPS Act exclude the application of the default bail provision under Section 167(2) of the CrPC.
2. Whether an accused can exercise the right to default bail after the charge-sheet has been filed, if they failed to apply for it during the period of default.
Ratio Decidendi:
The right to be released on bail due to default in filing the charge-sheet is an enforceable right only from the time of default until the filing of the charge-sheet. If the accused fails to exercise this right within that window, the right ceases to exist upon the filing of the charge-sheet, and subsequent bail applications must satisfy the statutory requirements of the governing Act (in this case, Section 37 of the NDPS Act).
Result:
Appeal dismissed.
Narcotics - The High Court rejected the bail prayer by referencing this Court's ruling on Section 37 of the N.D.P.S. Act, which was central to the appellant's case analysis.
Section 167 - Held that Section 37 does not exclude the proviso to sub-section 2 of Section 167 of CrPC, aiding the appellant's argument on custody duration.
Bail - Established that the indefeasible right to bail under the proviso expires upon filing of the challan, and the accused cannot claim it at a later stage of proceedings.
JUDGMENT
N.P. Singh, J. - Leave granted.
2. This appeal has been filed against an order dated 19.4.1994 passed by the High Court, rejecting the prayer of the bail made on behalf of the appellant, who is an accused for offences under the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act).
3. It appears that the appellant was arrested on 8.11.1993. A petitioner bail on merit was rejected by the City Sessions Judge on 4.2.1994 in view of the judgment of this Court in the case of Narcotics Control Bureau v. Kishan Lal and others1, taking into consideration Section 37 of the said Act. The High Court also rejected the prayer for bail, made on behalf of the appellant, in view of Section 37 of the Act, after making reference to the judgment of this Court in the case of Narcotics Control Bureau v. Kishan Lal and others (supra).
The learned counsel, appearing for the appellant, urged that the statutory period prescribed by proviso (a) to sub-section (2) of Section 167 of Code of Criminal Procedure during which the appellant could have been kept in custody, pending investigation, had expired, because of which the appellant should have been released on bail and at that stage there was no question of application of Section 37 of the Act. Recently, this Court has considered the question of applicability of proviso to sub-section (2) of Section 167 of the Code in respect of an accused under N.D.P.S. Act in the case of Union of India v. Thamisharasi & Ors.2 and it has been held that Section 37 does not exclude the application of the proviso to sub-section (2) of Section 167 of the Code, even in respect' of persons who are accused for offences under N.D.P.S. Act. But it is an admitted position that the charge-sheet has been filed on 23.5.1994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, has been examined by a Constitution Bench of this Court in the case of Sanjay Dutt v. State through CBI, Bombay (II)3, and it has been said:
“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 bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable-at that stage".
Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra4.
5. The learned counsel, appearing for the appellant, did not press the appeal on merit, saying that in the facts and circumstances of the case, the City Sessions Judge, should have held that there were reasonable grounds for believing that the appellant was not guilty of any offence under that Act, as required by subsection 1(b)(ii) of Section 37, Accordingly, the appeal fails and it is dismissed. However, we direct that the trial of the appellant be expedited.
Appeal dismissed.
1. AIR 1991 SC 558: (1991) 1 SCC 705.
2. JT 1995(4) SC 253,
3. (1994) 5 SCC 410.
4. (1992) 4 SCC 272.