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Default Bail is an indefeasible right of an accused and cannot be denied under any circumstances: J&K High Court

The High Court of Jammu and Kashmir today allowed the bail application of an accused and released him on bail in an NDPS case while taking a strong exception that the Learned Special Judge of the Trial Court acted arbitrarily and in utter disregard to the procedure established by law while disposing of the default bail application of the accused.

“By ignoring the statutory provisions as well as the precedents governing the grant of default bail, the learned Special Judge has shown utter disregard to the procedure established by law and has acted arbitrarily, while dealing with the application of the petitioner for grant of default bail”, the Court observed.

The High Court further observed that the default bail is an indefeasible right of an accused and cannot be denied under any circumstances when the applicant has exercised his right of default bail.

Brief Facts of the Case:

An FIR bearing No. 17/2020 for offences under Sections 8/15 NDPS Act came to be registered by the Police of Police Station, Banihal on the basis of information received from the reliable sources to the effect that a Truck bearing Registration No. PB02CC-7060 in which some narcotic drugs were concealed, was coming from Kashmir towards Jammu. On this information, the police laid a Naka at Chakori Nallah and stopped the aforesaid Truck, which was being driven by the petitioner. Upon conducting the search of the aforesaid Truck, 44 kgs of Poppy Straw was recovered from its toolbox and the petitioner was arrested.

The petitioner had filed an application for grant of bail in his favor in the aforesaid FIR before the Court of Principal Sessions Judge, Ramban, (hereinafter referred to as the ‘Special Judge’) but the same was rejected by the said Court vide order dated 24.06.2020. Being aggrieved of the said order, the petitioner had filed bail application before the High Court.

Grounds for seeking Bail by the petitioner:

The petitioner sought his release on bail mainly on the following grounds:That the petitioner is entitled to grant of default bail because the investigating agency failed to produce the chargesheet within the stipulated time; 

That the contraband as allegedly shown to be recovered from the possession of the petitioner is an intermediate quantity, as such, the rigors of Section 37 NDPS Act will not apply to the present case; 

That there is a grave threat to the life of the petitioner while being lodged in jail due to an outbreak of Covid-19 infection;

That the bail should not be denied to him as a measure of inflicting punishment upon him; and

That the petitioner will abide by all the conditions that may be imposed by the Court if he is enlarged on bail.

Grounds of Opposition/Challenge to the grant of bail by the State/Prosecution:

The Prosecution opposed the grant of bail to the accused-petitioner mainly on the following grounds:

That the offenses committed by the petitioner/accused are serious, grave, and heinous in nature and as such, he cannot claim bail as a matter of right;

That the petitioner/accused is involved in the illicit trade of sale and purchase of narcotic substance i.e. Poppy Straw which is very dangerous for the society, especially for younger generation and its consumption by the youth may affect their health and future; and

That there is every apprehension that the petitioner/ accused may indulge in similar activities in case he is admitted to bail.

Primary question for Consideration before the Court:

The question that arose for consideration was ‘whether or not successive bail applications will lie before the High Court?’

Observation by the High Court on the above referred Question:

The High Court observed and noted that the law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.

In this regard the Court relied on the ratio laid down by the Supreme Court in the case titled Gurcharan Singh & Ors. vs. State (Delhi Administration), AIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. State, (1987 Crimes Volume 3 page 363).

Thus, the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offense.

Observations and Findings of the High Court on the Grounds urged by the Petitioner:

The High Court considered two primary grounds relied upon by the accused to decide whether the accused is entitled to grant of bail or not, on which the High Court made the following observations,

Ground 1: Entitlement of Accused for Default bail:-

The High Court observed that it is clear that the petitioner had urged before the Trial Court/Special Court that he deserved to be given the benefit of default bail because the investigating agency had failed to present the charge-sheet within the stipulated period of time.

The learned Special Judge, while rejecting the bail application of the petitioner vide its order dated 24.06.2020 has not, at all, dealt with this aspect of the matter, though the contention of the petitioner has been noted in the order. The bail plea of the petitioner has been rejected by the learned Special Judge on merits.

The High Court noted that in order to test the merit of contention of the petitioner that he was entitled to default bail, it is necessary to examine the relevant facts in this regard. The Court observed that, as per the status report filed by the respondents, the petitioner was arrested on 11.02.2020 when the recovery of contraband was effected from his possession.

The status report further reveals that the charge-sheet has been filed against the petitioner on 23.06.2020 i.e. after 122 days of his arrest. Section 36A(4) of the NDPS Act provides for the modified application of Cr. P.C including the provisions contained in Section 167 of Cr. P.C to remand proceedings in respect of offenses triable by the Special Courts under the said Act.

Section 36A(1)(c) of NDPS Act empowers the Special Court constituted under the Act to exercise the same powers which a Magistrate having jurisdiction to try a case exercises under Section 167 of Cr.PC in relation to an accused person in such case, who has been forwarded to him under that Section.

Section 36A (4) of the NDPS Act provides that investigation into offenses under Section 19, 24 & 27A and offenses involving commercial quantity can be completed within a period of 180 days instead of 90 days as provided under Section 167(2) of Cr. PC. Thus, the benefit of the additional time limit is given for investigating more serious category of offenses.

 The High Court noted that an intermediate quantity of contraband is alleged to have been recovered from the accused, therefore, the offense for which the petitioner/accused has been booked is punishable with rigorous imprisonment for a term which may extend to 10 years and a fine which may extend to rupees one lakh in terms of Section 20 of NDPS Act.

Having regard to afore-quoted extracts of Section 167 of CrPC, the detention of the accused person in custody in the instant case cannot go beyond 90 days. The charge-sheet against the petitioner/accused in this case has been filed after 122 days of his arrest. On the expiry of 90 days, the petitioner/accused was entitled to default bail in terms of Section 167(2) of the Cr. P.C.

However, despite making an application to the learned Special Judge seeking his release on bail in default of presentation of chargesheet within the prescribed period, the learned Special Judge has not extended the benefit of default bail to him.

The Court observed that “The petitioner had, therefore, availed his indefeasible right to default bail which could not have been denied to him in any circumstances. He is, accordingly, held entitled to grant of statutory bail in terms of Section 167(2) of Cr.P.C.

Ground 2: Intermediate Quantity:

The High Court observed that in the instant case, the accused is alleged to be involved in the commission of the offense of possession of an intermediate quantity of contraband. The said offense is punishable under Section 20 of the NDPS Act and, as such, provisions of Section 36A (4) are not applicable to the instant case.

The Court also observed that “the quantity of contraband alleged to have been recovered from the petitioner falls within the parameters of intermediate quantity, as such; rigor of Section 37 of NDPS Act is not attracted to the instant case.”

Observations and Findings of the High Court on the Grounds urged by the State/Prosecution:

The High Court observed that allowing the petitioner to remain in custody because of the reason that the offenses alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. The investigation of the case is complete and the chargesheet already stands filed before the Court of Special Judge.

What Court Held:

The Court observed and held that even on merits, the petitioner is entitled to grant of bail, hence the petition was allowed and the petitioner has been admitted to bail on fulfilment of the conditions imposed by the Court in its order.

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Case Details:
Coram: Justice Sanjay Dhar
Case Title: Gurdev Sing vs Union Territory of J&K and Another
Case Number: Bail App No.167/2020, CrlM No.979/2020 and CrlM 980/2020
Counsels appearing for the parties:
Mr. Irfaan Khan, Advocate appeared for the petitioner.
Mr. Jamrodh Singh, Government Advocate (G.A.) appeared for the respondent/state

Judgements relied upon by the Court:
Gurcharan Singh & Ors vs. State (Delhi Administration), AIR 1978 SC 179
Devi Das Raghu Nath Naik v. State, (1987 Crimes Volume 3 page 363)
M Ravindran vs Directorate of Revenue Intelligence, 2020 SCC Online SC 867
In Sayed Mohd Ahmad Kazmi v State (Government of NCT OF Delhi), (2012) 12 SCC 1
Uday Mohanlal Acharya vs. State of Maharasthra, (2001) 5 SCC 453

This report is compiled by: M. Zulkarnain Choudhary and M. A. Shah Advocates practicing in the High Court of J&K