NDPS Act | Accused Must Apply For Default Bail On Expiry Of Statutory Detention Period, Cannot Be Released Automatically: Calcutta HC Full Bench
The Calcutta High Court at circuit bench Jalpaiguri held that an accused who is under detention under provisions of NDPS Act (the Act), cannot be released automatically on statutory bail on the expiry of 180 days which is prescribed under section 36A(4) of the Act until and unless he makes an application either in written or oral form. A Full bench comprising Justices Joymalya...
The Calcutta High Court at circuit bench Jalpaiguri held that an accused who is under detention under provisions of NDPS Act (the Act), cannot be released automatically on statutory bail on the expiry of 180 days which is prescribed under section 36A(4) of the Act until and unless he makes an application either in written or oral form.
A Full bench comprising Justices Joymalya Bagchi, Suvra Ghosh and Krishna Rao observed that if an accused fails to apply for statutory bail either in written or even oral form, his right does not crystallize and the Court is empowered to remand him to custody under section 167(2) Cr.P.C. read with section 36A(4) of NDPS Act beyond 180 days till he avails of such right.
The court relied upon M. Ravindran v. Directorate of Revenue Intelligence (2017) 15 SCC 67 in which the Supreme Court has held that where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished.
The court ruled:
“mere expiry of 180 days and/or failure of the prosecuting agency to seek extension of the period of detention prior to the expiry of the said period does not crystallize the right to statutory bail. It remains an inchoate right which crystallizes when the accused avails of his right by making an application under section 167(2) Cr.P.C. read with section 36A(4) of the NDPS Act upon expiry of 180 days or any extended period, as the case may be.”
In conclusion the court held:
An order extending period of detention under proviso to section 36A(4) of NDPS Act on a report filed by the prosecutor beyond 180 days but prior to the accused availing his right to statutory bail operates from the date of filing of the application and cannot be said to have retrospective operation. The court stated that the total period of detention under the above provisions shall not exceed one year in whole.
While putting emphasis on M. Ravindran decision the court declared that when a report of the prosecutor seeking extension of detention is filed, it extinguishes the right of the accused to statutory bail till the prayer of the prosecutor is dismissed.
The court reiterated that the failure of the court to inform the accused of his right to statutory bail upon the expiry of 180 days of detention would not entitle him to statutory bail unless he avails of such relief.
The court further highlighted that prayer for extension of period of detention must be on the basis of a report of Public Prosecutor which must record progress of investigation and spell out specific reasons to justify further detention beyond 180 days pending investigation.
The bench also observed that special court on the basis of the report of Public Prosecutor and materials in support of such plea must be satisfied of the two requirements, firstly, there is appreciable progress in the investigation and secondly, there are specific/compelling reasons to justify further detention pending investigation. It also ruled that prayer for extension of period of detention must be decided at the earliest without undue delay preferably within 7 days from making such application.
On the issue of availability of report of public prosecutor to the accused, the court stated that no written notice or copy of report of Public Prosecutor requires to be served upon the accused or his counsel but the accused or his counsel must be present personally or through video linkage at the time of consideration of the application.
Case Title: Subhas Yadav v. The State of West Bengal and Other related petitions
Citation: 2023 LiveLaw (Cal) 15