NDPS | Extension Beyond Statutory Period In Submitting Chargesheet Cannot Be Granted Without Giving Hearing To Accused: Orissa High Court

While rejecting arguments of the State, a Single Judge Bench of Justice Sashikanta Mishra observed,

"…it is evident that the order passed by learned Special Judge on 27.01.2021 granting extension of the time to complete investigation by thirty days without having the accused persons produced before him and without granting them an opportunity to have their say in the matter renders the same illegal and unsustainable in the eye of law."

Brief Facts:

The petitioners herein are two out of several accused persons for the alleged commission of offence under Sections 20(b)(ii)(C) / 27-A of the NDPS Act. It is alleged that on 21.08.2020 while the S.I. of police of Mathili Police Station (of Malkangiri district) was conducting patrolling duty, he received information about illegal transportation of contraband Ganja. Subsequently, a truck was intercepted. Search of the vehicle revealed several bags of Ganja, in all weighing 1217 KG 700 grams, which were seized. After following the statutory formalities, the accused persons were arrested.

The petitioners were remanded to judicial custody for the first time on 22.08.2020. the stipulated period of 180 days for filing the chargesheet expired on 17.02.2021. However, the Special Public Prosecutor filed a petition for extension of time to submit the charge sheet on 25.01.2021, without serving copy thereof on the petitioners. The said petition was heard by learned Special Judge on 27.01.2021 and was allowed by granting 30 days extension without having the accused persons produced or after hearing them. They were in the custody since their arrest.

Contentions of the Petitioners:

Advocate Shyam Manohar, the counsel for the petitioners, submitted that the petition of the prosecution for extension beyond statutory period to file chargesheet was heard by learned Special Judge on 27.01.2021 and was allowed by granting 30 days extension without having the accused persons produced and even without hearing them. This, the counsel contended, violates the law laid down by the Apex court in the cases of Hitendra Vishnu Thakur v. State of Maharashtra (1994), Rakesh Kumar Paul v. State of Assam (2017), M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence (2021) and of the Orissa High Court in Naresh Digal v. State of Odisha (2021).

Contentions of the Respondent:

The Additional Standing Counsel for the State argued that after submission of charge-sheet it was no longer open to the petitioner to claim default bail and secondly, the instant application for bail was filed on other grounds and therefore, the prayer for default bail cannot be considered. He further contended that even otherwise, the petition for extension of time to submit charge-sheet was allowed before the stipulated period and after hearing the defence counsel and thus, no further notice was required to be given to the accused.

Observations of the Court:

The Court held that in the case of Hitendra Vishnu Thakur (supra), the Apex Court has held that when a petition is filed by the Public Prosecutor seeking extension of time to submit charge-sheet, its notice should be issued to the accused before granting such extension so that he may have an opportunity to oppose it on all legitimate and legal grounds available to him.

Further it placed reliance upon the dictum laid down in Lambodar Bag v. State of Odisha, 2018 (71) OCR 31, wherein it was held that it is mandatory to grant an opportunity of hearing to the accused before granting extension of time to complete investigation.

Also, in Iswar Tiwari v. State of Odisha, 2020 (80) OCR 289, the legal position as regards the provisions under Section 167(2) of Cr.P.C read with Section 36(A)(4) of the NDPS Act, was elaborately discussed by the Orissa High Court and it was held that the notice must mandatorily be issued to the accused and he must be produced before the Court whenever such an application is taken up and that where any such report occurs the question of it being contested does not arise and a right accrues in favour of the accused.

The Court further rejected the submission of the State that as the accused have not taken ground of default bail in the bail petition, it cannot be granted. It accordingly observed,

"Coming to the objection raised by learned State Counsel that the petitioners not having taken the ground of default bail in the instant bail applications the same cannot be considered, this Court can do no better than to refer to the observations made in the case of Rakesh Kumar Paul vs. State of Assam, reported in (2017) 68 OCR (SC) 1 to the effect that in the matter of personal liberty the Court cannot and should be too technical and must lean in favour of personal liberty and that whether the accused makes a written application for 'default bail' or an oral application for 'default bail' is of no consequence. The concerned Court must deal with such an application."

Relying upon Lambodar Bag (supra), the Court held that grounds not taken in the Court below can be taken in the bail petition in the higher Court and even not-taking of grounds in the bail petition will not deprive the counsel for the accused in raising such grounds during hearing of the bail application.

"…even if a ground for grant of bail is not taken in the bail petition and not argued by the counsel for the accused, the Court is not deprived of releasing the accused on bail on such ground if it is legally sustainable. Strict rules of pleading are not applicable in bail petition."

Consequently, the Court held the view that the indefeasible right of the accused must be held to have survived notwithstanding submission of chargesheet and therefore, they are entitled to be released on bail.

Case Title: Biru Singh v. State of Odisha

Case No.: BLAPL 9135 of 2021

Date of Order: 22 February 2022

Coram: Justice Sashikanta Mishra

Citation: 2022 LiveLaw (Ori) 18