APPLN/4178/2006 of MALIN LUNDBERG ISABELLE Vs UNION OF INDIA AND ANR on 22 December 2006

Judgement:-

.The short question in this criminalapplication for bail is whether the provisions ofSection 10 of the General Clauses Act can beapplied to a case covered by proviso to Section167(2) of Cr.P.C. In other words, despite theperiod of sixty days or ninety days prescribedtherein being over, the mandate to release theaccused on bail does not come into play, if the charge sheet is filed on sixty-first day orninety-first day.

2. The facts lie in a very narrow compass.The applicant before me is a foreigner. To beprecise she is a citizen of Finland. She is incustody since 10th May 2006 for allegedpossession of 6534 gms. of Hashish, whichquantity is a commercial quantity and, therefore,there is violation of relevant provisions ofN.D.P.S. Act. She was produced before thelearned Special Judge on 10th May 2006. It isher case that 180 days expired from the date ofsuch production on 5th May 2006 and anindefeasible right accrued in her favour byvirtue of section 36A of NDPS Act, 1985 read withSection 167(2) of Cr.P.C. She applied for bailon 6th November 2006. The short submission onher behalf was that section 36 of N.D.P.S. Actindicates that complaint/charge sheet in caseswhere commercial quantity is involved be filedwithin 180 days. Upon failure to do so, the right accrues in favour of applicant to bereleased on bail. The same was exercised beforefiling of charge sheet/complaint and upon expiryof the period of 180 days, the 180th day being5th November 2006.

3. This application was contested by theprosecution and it was contended that 5thNovember 2006 being Sunday, the complaint/chargesheet was laid on 6th November 2006 duringworking hours and the so called indefeasibleright, therefore, does not accrue in favour ofthe applicant. Consequently, her bailapplication should be dismissed.

4. Accepting this argument on behalf ofprosecution and by referring to section 10 ofGeneral Clauses Act 1897, learned Special Judgehas denied bail to the applicant vide his orderdated 6th November 2006. That is how the presentapplication is preferred in this Court.

5. Mr.Mundargi, learned Senior Counsel forapplicant submits that there cannot be anydispute about the applicability of provisionscontained in section 36A of N.D.P.S. Act andSection 167(2) of Cr.P.C. He submits thatsection 10 of General Clauses Act cannot beapplied nor its principles invoked in the instantcase because the pre-requisite prescribed thereinis not satisfied in this case. He submits thatthis is a matter of liberty of an individual.There is a mandate flowing from the Statutoryprovisions. There is no discretion left in thecourt. Upon completion of the period of 180days, if no complaint/charge sheet is filed,then, the accused must be enlarged on bail, if heoffers to do so. It is only if the accused doesnot wish to be enlarged on bail or does not offerhimself for being so enlarged, that bail can bedenied. Otherwise, releasing on bail is themandate flowing from the provisions. Section 10of General Clauses Act deals with computation oftime, where by any Central Act or Regulation made

after the commencement of General Clauses Act,any act or proceeding is directed or allowed tobe done or taken in any Court or office on acertain day or within a prescribed period, then,if the Court or office is closed on that day orthe last day of the prescribed period, the act orproceeding shall be considered as done or takenin due time if it is done or taken on the nextday afterwards on which the Court or office isopen. He submits that this provision does notapply to any act or proceedings to whichLimitation Act applies. However, this is aprovision which cannot be invoked to defeat themandate of section 167(2) of Cr.P.C. and it isnow well settled by two decisions of this Court.Two learned Single Judges of this Court havetaken a view that Section 10 can have noapplication to cases of grant of bail underproviso to section 167(2) of Cr.P.C. Thesejudgements are binding upon me. They werebinding upon learned Special Judge, as well. Insuch circumstances, and when N.D.P.S. and Cr.P.C. contain pari-materia provisions, theapplicant deserves to be enlarged on bail.

6. In support of his contentions Mr.Mundargirelied upon following decisions:-

i)Union of India Vs. Thamisharasi& Ors. (J.T. 1995 (4) S.C. 253; ii)Uday Mohanlal Acharya Vs. Stateof Maharashtra (2001 S.C.C. (Cri) 760

iii)Rajeev Chaudhary Vs. State (NCT)Delhi (2001 S.C.C. (Cri) 819;

iv)State of Maharashtra Vs. SharadB. Sarda (1983 (1) Bom.C.R. 578);

v)Habibulla Saudagar Vs. State ofMaharashtra (1988 Mh.L.J. 285);

vi)Dinesh Yadav Vs. State and Ors.(2002 Cri.L.J. 1067)

vii)Ganesh Prasad Vs. State of M.P.(2001 Cri.L.J. 3444

7. On the other hand Ms.Kantharia learnedAdvocate appearing for Union of India submitsthat the bail has been rightly denied to theapplicant. She submits that 5th November 2006being Sunday, the complaint/charge sheet was laidon 6th November 2006 which is a workingday/Monday. She states that in suchcircumstances Section 10 of the General ClausesAct was applicable and the principle underlyingthe same would hold good even in a case coveredby section 167(2) of Cr.P.C. In any event, shesubmits that the applicant in this case is facingtrial for offences punishable under N.D.P.S.Act. The procedure under the N.D.P.S. Act isthat the NCB files a complaint in Court of Special Judge. Unlike any other case where acharge sheet or challan is laid in a special caseunder N.D.P.S.Act, the Bureau files a complaint.That complaint is to be filed in the Court.Filing/lodging of the same cannot be done onSunday and was, therefore, rightly done on thevery next day i.e. Monday. The complaint havingbeen filed within working hours, the 180th daywould be 6th November 2006. The complaint beinglodged at 11.00 a.m. the so called indefeasibleright of the applicant is extinguished andconsequently the application was rightlyrejected.

8. Insupport ofhersubmissions,Ms.Kantharia has relied upon the followingdecisions:

i)State of M.P. Vs. Rustam & Ors.(1995 Supp (3) S.C.C. 221;

(ii) H.H.Raja Harinder Singh Vs.

S.Karnail Singh (A.I.R. 1957 S.C. 271)

(iii) Nirapat and Anr. Vs. State ofU.P. (1988 ALL.L.J. 1146)

9. For properly appreciating the rivalcontentions a reference to both sections 36A ofN.D.P.S. Act and Section 167(2) of Cr.P.C. isnecessary. The same read as under:- "36A:Offences triable by SpecialCourts:- (1) Notwithstanding anythingcontained in the Code of CriminalProcedure, 1973 - (a)All offences under thisAct which are punishable withimprisonment for a term of morethan three years shall be triableonly by the Special Courtconstituted for the area in which the offence has been committed orwhere there are more SpecialCourts than one for such area, bysuch one of them as may bespecified in this behalf by theGovernment;

(b) Where a person accused ofor suspected of the commission ofan offence under this Act isforwarded to a Magistrate undersub-section (2) or sub-section(2-A) of Section 167 of the Codeof Criminal Procedure, 1973, suchMagistrate may authorise thedetention of such person in suchcustody as he thinks fit for aperiod not exceeding fifteen daysin the whole where suchMagistrate is a JudicialMagistrate and seven days in thewhole such Magistrate is an Executive Magistrate; "167(2):The Magistrate to whom anaccused person is forwarded under thissection may, whether he has or has nojurisdiction to try the case, from timeto time, authorise the detention of theaccused in such custody as suchMagistrate thinks fit, for a term notexceeding fifteen days in the whole; andif he has no jurisdiction to try the caseor commit it for trial, and considersfurther detention unnecessary, he mayorder the accused to be forwarded to aMagistrate having such jurisdiction"

10. In the case reported in 1995 J.T. (4)S.C. 253 (Union of India Vs. Thamisharasi &Ors) the Supreme Court has observed that theproviso to sub-section (2) of Section 167 ofCr.P.C. can be invoked by an accused arrestedfor commission of an offence under the N.D.P.S.

Act, for releasing him on bail on the expiry ofthe total period specified therein if thecomplaint is not filed within that period. Inthis context the Supreme Court has observedthus:- "8:Section 36-A makes it clear thata person accused of or suspected of thecommission of an offence under theN.D.P.S.Act is to be forwarded to aMagistrate under sub-section (2) orsub-section (2-A) of Section 167 Cr.P.C.;and the Special Court constituted underSection 36 of the Act exercises, inrelation to the person so forwarded toit, the same power which a Magistratehaving jurisdiction may exercise underSection 167 Cr.P.C. in relation to anaccused person forwarded to him underthat Section. The clear reference to thepower of the magistrate under Section 167Cr.P.C., particularly sub-section (2)

thereof, is an indicatiion that no partof sub-section (2) of Section 167 of theCode is inapplicable in such a caseunless there be any specific provision tothe contrary in the N.D.P.S.Act. Thisconclusion is reinforced by some otherprovisions of the N.D.P.S.Act. Section36-C says that "save as otherwiseprovided in this Act, the provisions ofthe Code of Criminal Procedure, 1973 (2of 1974), (including the provisions as tobail and bonds) shall apply to theproceedings before a Special Court." Thisalso indicates that the provisions in theCode of Criminal Procedure relating tobail and bonds are applicable to theproceedings before a Special Court underthe N.D.P.S.Act "save as otherwiseprovided in this Act." Section 51 alsosays that the provisions of the Code ofCriminal Procedure, 1973 shall apply, inso far as they are not inconsistent with

the provisions of this Act, to allwarrants issued and arrests, searches andseizures made under this Act. Except forSection 37 of the N.D.P.S.Act, no otherprovision of the N.D.P.S.Act is relied onto contend that there is any inconsistentprovision in the N.D.P.S.Act to excludethe applicability merely of the provisoto sub-section (2) of Section 167 Cr.P.C.when sub-section (2) of Section 167 ofthe Code is made expressly applicable bySection 36-A of the N.D.P.S.Act.

"9:The question, therefore, is :Whether Section 37 of the N.D.P.S.Act isan inconsistent provision of this kind toexclude the applicability merely of theproviso to sub-section (2) of Section 167Cr.P.C. is expressly made applicable bythe N.D.P.S.Act? The non-obstante clauseat the beginning of sub-section (1) ofSection 37 indicates that the provisions in clauses (a) and (b) thereof areinconsistent with the correspondingprovisions of the Code. Clause (a) makesevery offence punishable under this Actto be cognizable. Clause (b) imposeslimitations on granting of bail specifiedtherein which are in addition to thelimitations under the Code of CriminalProcedure on granting of bail as statedin sub-section (2) of Section 37. Clause(b) of sub-section (1) specifies the twolimitations on granting of bail, namely,(1) an opportunity to the PublicProsecutor to oppose the bailapplication, and (2) satisfaction of thecourt that there are reasonable groundsfor believing that the accused is notguilty of such offence and that he is notlikely to commit any offence while onbail. The learned Additional SolicitorGeneral contends that these limitationson granting of bail specified in clause (b) of sub-section (1) of Section 37indicate that the applicability of theproviso to sub-section (2) of Section 167Cr.P.C. is excluded in such cases. Weare unable to accept this contention.

"13:Accordingly, provision in Section37 to the extent it is inconsistent withSection 437 of the Code of CriminalProcedure supersedes the correspondingprovision in the Code and imposeslimitations on granting of bail inaddition to the limitations under theCode of Criminal Procedure as expresslyprovided in sub-section (2) of Section37. These limitations on granting ofbail specified in sub-section (1) ofSection 37 are in addition to thelimitations under Section 437 of the Codeof Criminal Procedure and were enactedonly for this purpose; and they do nothave the effect of excluding the applicability of the proviso tosub-section (2) of Section 167 Cr.P.C.which operates in a different fieldrelating to the total period of custodyof the accused permissible duringinvestigation.

"14:In our opinion, in order toexclude the application of the proviso tosub-section (2) of Section 167 Cr.P.C.in such cases an express provisionindicating the contrary intention wasrequired or at least some provision fromwhich such a conclusion emerged bynecessary implication. As shown by us,there is no such provision in theN.D.P.S.Act and the scheme of the Actindicates that the total period ofcustody of the accused permissible duringinvestigation is to be found in Section167 Cr.P.C. which is expressly applied.The absence of any provision inconsistent therewith in this Act is significant.

11. Further in a decision reported in 2001S.C.C. (Cri) 760, the Supreme Court has referredto its later decision this very point reported in1996(1) S.C.C. 718 (Dr.Bipin Panchal Vs. Stateof Gujarat).

12. The rightstoodextinguished inDr.Panchal’s because of peculiar facts of thatcase. However, the principle that sub-section 2of Section 167 of Cr.P.C. would apply to accusedunder N.D.P.S. Act has been noted and followed.Later decision is of Uday Acharya Vs. State ofMaharashtra, reported in 2001 S.C.C. (Cri) 760.

13. The Supreme Court noting the mandate ofthe relevant provisions observes thus:- "6:There cannot be any dispute thaton expiry of the period indicated in the proviso to sub-section (2) of Section 167of the Code of Criminal Procedure theaccused has to be released on bail, if heis prepared to and does furnish the bail.Even though a Magistrate does not possessany jurisdiction to refuse the bail whenno charge-sheet is filed after expiry ofthe period stipulated under the provisoto sub-section (2) of Section 167 andeven though the accused may be preparedto furnish the bail required, but suchfurnishing of bail has to be inaccordance with the order passed by theMagistrate. In other words, without anorder of the Magistrate the legislativemandate engrafted in the proviso tosub-section (2) of Section 167 cannot begiven effect to and there lies the rub.The grievance of the accused is that fora variety of reasons the Magistrate oreven the superior court would refuse topass an order releasing the accused on bail, notwithstanding the preconditionsrequired under the proviso are satisfiedand then when the accused moves the HighCourt or the Supreme Court during theinterregnum the police files a challan.It was also contended by Mr.Tulsi that aPublic Prosecutor may take adjournmentfrom the court when the bail applicationwas being moved and then would persuadethe investigating agency to file achallan and then contend that the courtwould not be entitled to release theaccused on bail under the proviso tosub-section (2) of Section 167, and inthat situation not only the positivecommand of the legislature is flouted butalso an unauthorised period of custody isbeing legalised and this would be aninfraction of the constitutionalprovision within the meaning of Article22. In Hitendra Vishnu Thakur v. Stateof Maharashtra two learned Judges of this Court construed the provisions of Section167 of the Code of Criminal ProcedureCode read with sub-section (4) of Section20 of TADA. After examining in detailthe object behind the enactment ofSection 167 of the Code of CriminalProcedure and the object of Parliamentintroducing the proviso to sub-section(2) of Section 167 prescribing the outerlimit within which the investigation mustbe completed the Court expressed that theproviso to sub-section (2) of Section 167read with Section 20(4)(b) of TADAcreates an indefeasible right in anaccused person on account of the defaultby the investigating agency in thecompletion of the investigation withinthe maximum period prescribed orextended, as the case may be, to seek anorder for his release on bail and suchorder is generally termed as an "order ondefault." The Court also held that an obligation is cast upon the court toinform the accused of his right of beingreleased on bail and enable him to makean application in that behalf. It wasalso further held that the accused wouldbe entitled to move an application forbeing admitted on bail and the DesignatedCourt shall release him on bail if theaccused seeks to be so released andfurnished the requisite bail. The Courtdeclined to agree with the contention ofthe accused that the Magistrate mustrelease the accused on bail on its ownmotion even without any application froman accused person on his offering tofurnish bail.

Conclusion

"10:In Bipin Shantilal Panchal (Dr)v. State of Gujarat, a three-Judge Benchdecision, this Court referred to theproviso to sub-section (2) of Section 167of the Code of Criminal Procedure and held that though the aforesaid provisionswould apply to an accused under the NDPSAct,but since the charge-sheet hadalready been filed and the accused is incustody on the basis of orders of remandpassed under other provisions of the Codethe so-called indefeasible right of theaccused must be held to have beenextinguished, as was held by theConstitution Bench in Sanjay Dutt. TheCourt observed thus: (SCC p.720, para4).

"Therefore, if an accused personfails to exercise his right to bereleased on bail for the failureof the prosecution to file thecharge-sheet within the maximumtime allowed by law, he cannotcontend that he had anindefeasible right to exercise itat any time notwithstanding thefact that in the meantime thecharge-sheet is filed. But onthe other hand if he exercisesthe right within the time allowedby law and is released on bailunder such circumstances, hecannot be rearrested on the merefiling of the charge-sheet, aspointed out in Aslam Babalal Desai v. State of Maharashtra."

"13:In State of M.P. v. Rustam thisCourt set aside the order of the HighCourt where the High Court had releasedthe accused on bail, charge-sheet nothaving been filed within the periodstipulated in Section 167(2) of the Codeof Criminal Procedure, as by the timeHigh Court entertained the bailapplication, challan had already beenfiled, this Court had observed that thecourt is required to examine theavailability of the right to compulsivebail on the date it is considering thequestion of bail and not barely on thedate of presentation of the petition forbail. This Court came to the conclusion:(SCC p.223, para 4)

"On the dates when the High Courtentertained the petition for bailand granted it to the accused-respondents, undeniablythe challan stood filed in court,and then the right as such wasnot available."

A conspectus of the aforesaiddecisions of this Courtunequivocally indicates that anindefeasible right accrues to theaccused on the failure of theprosecution to file the challanwithin the period specified undersub-section (2) of Section 167and right can be availed by theaccused if he is prepared tooffer the bail and abide by theterms and conditions of thebail,necessarily, therefore, anorder of the court has to bepassed. It is also further clearthat indefeasible right does notsurvive or remain enforceable onthe challan being filed, ifalready not availed of, as hasbeen held by the ConstitutionBench in Sanjay Dutt case. Thecrucial question that arises forconsideration, therefore, is whatis the true meaning of theexpression "if already notavailed of"? Does it mean thatan accused files an applicationfor bail and offers hiswillingness for being released onbail or does it mean that a bailorder must be passed, the accusedmust furnish the bail and get himreleased on bail? In ourconsidered opinion it would bemore consonance with thelegislative mandate to hold thatan accused must be held to haveavailed of his indefeasible

right, the moment he files anapplication for being released onbail and offers to abide by theterms and conditions of bail. Tointerpret the expression "availedof" to mean actually beingreleased on bail after furnishingthe necessary bail required wouldcause great injustice to theaccused and would defeat the verypurpose of the proviso to Section167(2) of the Criminal ProcedureCode and further would make anillegal custody to be legal,inasmuch as after the expiry ofthe stipulated period themagistrate had no furtherjurisdiction to remand and suchcustody of the accused is withoutany valid order of remand. Thatapart, when an accused filed anapplication for bail indicatinghis right to be released as nochallan had been filed within thespecified period, there is nodiscretion left in the Magistrateand the only thing he is requiredto find out is whether thespecified period under thestatute has elapsed or not, andwhether a challan has been filedor not. If the expression"availed of" is interpreted tomean that the accused mustfactually be released on bail,then in a given case where themagistrate illegally refuses topass an order notwithstanding themaximum period stipulated inSection 167 had expired, and yetno challan had been filed thenthe accused could only move tothe higher forum and while the matter remains pending in thehigher forum for consideration,if the prosecution files acharge-sheet then also theso-called right accruing to theaccused because of inaction onthe part of the investigatingagency would get frustrated.Since the legislature has givenits mandate it would be thebounden duty of the court toenforce the same and it would bein the interest of justice tonegate the same by interpretingthe expression "if not availedof" in a manner which is capableof being abused by theprosecution. A two-Judge Benchdecision in this Court in Stateof M.P. v. Rustam setting asidethe order of grant of bail by theHigh Court on a conclusion thaton the date of the order theprosecution had already submitteda police report and therefore,the right stood extinguished, inour considered opinion does notexpress the correct position inlaw of the expressions "ifalready not availed of", used bythe Constitution Bench in SanjayDutt. We would be failing in ourduty if we do not notice thedecisions mentioned by theConstitution Bench in Sanjay Duttcase which decisions according tothe learned counsel, appearingfor the State, clinch the issue.In Makhan Singh Tarsikka v.State of Punjab an order ofdetention had been assailed in apetition filed under Article 32,on the ground that the period of

detention could not be indicatedin the initial order itself, asunder the provisions of thePreventive Detention Act, 1950,it is only when the AdvisoryBoard reports that there issufficient cause for detention,the appropriate Government mayconfirm the detention order andcontinue the of the detenu forsuch period, as it thinks fit.On a construction of the relevantprovisions of the PreventiveDetention Act, as it stood thenthis Court accepted thecontention and came to hold thatthe fixing of the period ofdetention in the initial orderwas contrary to the scheme of theAct and could not be sustained.We fail to understand as to howthis decision is of anyassistance for arriving at a justconclusion on the issue, which weare faced with in the presentcase. The next decision is thecase of Ram Narayan Singh v.State of Delhi. In this case ona habeas corpus petition beingfiled under Article 32, the Courtwas examining the legality of thedetention on the date the Courtwas considering the matter. Fromthe facts of the case, ittranspires that there was nomaterial to establish that therewas a valid order of remand ofthe accused. The Court,therefore, held that even if theearlier order of remand may beheld to be a valid one, but thesame having expired and no longerbeing in force and there being no valid order of remand, thedetention was invalid. It is inthis context, an observation hasbeen made that in a question ofhabeas corpus, lawfulness orotherwise, custody of the personconcerned will have to beexamined with reference to thedate of the return and not withreference to the institution ofthe proceedings. There cannot beany dispute with the aforesaidproposition, but in the case inhand, the consequences of defaulton the part of the investigatingofficer in not filing thecharge-sheet within theprescribed period have beenindicated in the provisions ofthe statute itself and thelanguage is of mandatorycharacter, namely the accusedshall be released on bail In viewof the aforesaid language of theproviso to sub-section (2) ofSection 167 and in view of theexpression used in Sanjay Duttcase to the effect "if notavailed", the aforesaid decisionwill be of no assistance. Thethird decision to in Sanjay Duttcase is the case of A.K.Gopalanv. Govt.of India. This was alsoa case for issuance of a writ ofhabeas corpus, filed underArticle 32. In this case theConstitution Bench observed:(SCR p.430 C-D)

"It is well settled that indealing with a petition forhabeas corpus the court has tosee whether the detention on the date on which the application ismade to the court is legal, ifnothing more has intervenedbetween the date of theapplication and the date ofhearing."

"In that case, the detenu wasdetained by order passed on4-3-1965 and the earlier order ofdetention passed on 29-12-1964was no longer in force, when thedetenu filed the application inthe Supreme Court. The Court,therefore observed that it is notnecessary to consider thevalidity of the detention ordermade on 29-12-1964 and the Courtis only concerned with thevalidity of the order ofdetention dated 4-3-1965. Theobservations made by the Courtand the principles enunciatedreferred to earlier would supportour conclusion that the rightswhether accrued or not to anaccused, will have to beconsidered on the date he filedthe application for bail and notwith reference to any later pointof time. In Abdul Latif WahabSheikh v. B.K. Jha where thefinal order of detention had beenassailed, this Court had observedthat in a habeas corpusproceeding it is not a sufficientanswer to say that the proceduralrequirements of the Constitutionand the statute have beencomplied with, before the date ofhearing and, therefore, thedetention should be upheld. Theaforesaid observation had been made when there was no AdvisoryBoard in existence to whom areference could be made and whosereport could be obtained, asrequired by the Constitution.Further the representation filedby the detenu had not beendisposed of within the stipulatedperiod, but an argument had beenadvanced that by the date ofhearing of the petition therepresentation had been disposedof. This Court did not acceptthe plea of the State andinterfered with the order ofdetention. In interpreting theexpression "if not availed of" inthe manner in which we have justinterpreted we are conscious ofthe fact that accused persons inseveral serious cases would getthemselves released on bail, butthat is what the law permits, andthat is what the legislaturewanted and an indefeasible rightto an accused flowing from anylegislative provision ought notto be defeated by a court bygiving a strained interpretationof the provisions of the Act. Inaforesaid premises, we are of theconsidered opinion that anaccused must be held to haveavailed of his right flowing fromthe legislative mandate engraftedin the proviso to sub-section (2)of Section 167 of the Code if hehas filed an application afterthe expiry of the stipulatedperiod alleging that no challanhas been filed and he is preparedto offer the bail that isordered, and it is found as a

Facts

fact that no challan has beenfiled within the periodprescribed from the date of thearrest of the accused. In ourview, such interpretation wouldsubserve the purpose and theobject for which the provision inquestion was brought on to thestatute-book. In such a case,therefore, even if theapplication for consideration ofan order of being released onbail is posted before the courtafter some length of time, oreven if the Magistrate refusesthe application erroneously andthe accused moves the higherforum for getting a formal orderof being released on bail inenforcement of his indefeasibleright, then filing of challan atthat stage will not take away theright of the accused. Personalliberty is one of the cherishedobjects of the IndianConstitution and deprivation ofthe same can only be inaccordance with law and inconformity with the provisionsthereof, as stipulated underArticle 21 of the Constitution.When the law provides that theMagistrate could authorise thedetention of the accused incustody up to a maximum period asindicated in the proviso tosub-section (2) of Section 167,any further detention beyond theperiod without filing a challanby the investigating agency wouldbe a subterfuge and would not bein accordance with law and inconformity with the provisions of the Criminal Procedure Code, andas such, could be violative ofArticle 21 of the Constitution.There is notprovision in theCriminal Procedure Codeauthorising detention of anaccused in custody after theexpiryoftheperiodindicatedinproviso to sub-section (2) ofSection 167 excepting thecontingency indicated inExplanation I, namely, if theaccused does not furnish thebail. Itisinthissenseitcanbestatedthatifafterexpiryofthe period, anapplication forbeing releasedonbailisfiled,andtheaccusedofferstofurnishthebailandtherebyavailofhisindefeasible right andthen anorder of bail is passed oncertain termsandconditionsbutthe accusedfailstofurnishthebail,andatthatpointoftimeachallan isfiled,then possiblyit canbesaidthattherightofthe accusedstood extinguished.But solongastheaccusedfilesan applicationandindicates inthe applicationtoofferbailonbeing released by appropriateorders of the court then theright of theaccused on beingreleased on bail cannot befrustrated ontheoffchance ofthe Magistrate erroneouslyrefuses topassanorderandthematter is movedto the higherforum and achallanisfiled ininterregnum. This isthe onlyway howabalancecanbe struckbetween the so-calledindefeasiblerightoftheaccused on failure onthepart of theprosecution to filea challanwithin thespecifiedperiod andthe interestofthesociety, atlarge, inlawfullypreventinganaccused from beingreleased onbail on accountofinaction onthe part of the prosecutingagency. On the aforesaidpremises, we would record ourconclusions as follows:

1. Under sub-section (2) of Section167, a Magistrate before whom an accused is produced while the police isinvestigating into the offence canauthorise detention of the accused insuch custody as the Magistrate thinks fitfor a term not exceeding 15 days on thewhole.

2. Under the provisoto the

aforesaid sub-section (2) of Section 167,the Magistrate may authorise detention ofthe accused otherwise than in the custodyof police for a total period notexceeding 90 days where the investigation relates to offence punishable with death,imprisonment for life or imprisonment fora term of not less than 10 years, and 60days where the investigation relates toany other offence.

3. On the expiry of the said periodof 90 days or 60days,asthecase maybe, an indefeasible right accrues infavour oftheaccusedforbeingreleasedon bail on accountofdefault by theinvestigatingagencyinthecompletionofthe investigation within the periodprescribedandtheaccusedisentitledtobereleasedonbail,ifheispreparedtoandfurnishesthebailasdirectedbytheMagistrate.

4. When an application for bail isfiled by an accused for enforcement ofhis indefeasible right alleged to havebeen accrued in his favour on account of default on the part of the investigatingagency in completion of the investigationwithin the specified period, theMagistrate/court must dispose of itforthwith, on being satisfied that infact the accused has been in custody forthe period of 90 days or 60 days, asspecified and no charge-sheet has beenfiled by the investigating agency. Suchprompt action on the part of theMagistrate/court will not enable theprosecution to frustrate the object ofthe Act and the legislative mandate of anaccused being released on bail on accountof the default on the part of theinvestigating agency in completing theinvestigation within the periodstipulated.5.If the accused is unable tofurnish the bail as directed by theMagistrate, then on a conjoint reading of Explanation I and the proviso tosub-section (2) of Section 167, thecontinued custody of the accused evenbeyond the specified period in para (a)will not unauthorised, and therefore, ifduring that period the investigation iscomplete and the charge-sheet is filedthen the so-called indefeasible right ofthe accused would stand extinguished.

6. The expression "if not alreadyavailed of" used by this Court in SanjayDutt case must be understood to mean whenthe accused files an application and isprepared to offer bail on being directed.In other words, on expiry of the periodspecified in para (a) of the proviso tosub-section (2) of Section 167 if theaccused files an application for bail andoffers also to furnish the bail on beingdirected, then it has to be held that theaccused has availed of his indefeasible right even though the court has notconsidered the said application and hasnot indicated the terms and conditions ofbail, and the accused has not furnishedthe same.

.With the aforesaid interpretation of theexpression "availed of" if the charge-sheet isfiled subsequent to the availing of theindefeasible right by the accused then that rightwould not stand frustrated or extinguished,necessarily therefore, if an accused entitled tobe released on bail by application of the provisoto sub-section (2) of Section 167, makes theapplication before the Magistrate, but theMagistrate erroneously refuses the same andrejects the application and then the accusedmoves the higher forum and while the matterremains pending before the higher forum forconsideration charge-sheet is filed, theso-called indefeasible right of the accused wouldnot stand extinguished thereby, and on the other

Procedure

hand, the accused has to be released on bail.Such an accused, who thus is entitled to bereleased on bail in enforcement of hisindefeasible right will, however, have to beproduced before the Magistrate on a charge-sheetbeing filed in accordance with Section 209 andthe Magistrate must deal with him in the matterof remand to custody subject to the provisions ofthe Code relating to bail and subject to theprovisions of cancellation of bail alreadygranted in accordance with law laid down by thisCourt in the case of Mohd.Iqbal v. State ofMaharashtra."

14. As to whether section 10 of the Generalclauses Act could be invoked in such cases alsofell for consideration of this Court in a casereported in 1983(1) Bom.C.R. 578 (State ofMaharashtra Vs. Sharad B. Sarda). A learnedSingle Judge (M.P.Kanade, J as His Lordship thenwas) of this Court dealing with identicalarguments has observed that the right under section 167(2) being indefeasible and absolute,cannot be allowed to be defeated by resorting tosection 10 of General Clauses Act. In paras 13and 14 this is what the learned Judge hasobserved:

"13:The point to be decided is, as towhether the provisions of section 10 ofthe General Clauses Act, 1897 areattracted by the facts of this case.Mr.Hudlikar contended that 90th day ofdetention of the accused falls on Sundayi.e. on September 12, 1982, so on thenext opening of the Court a charge-sheetis filed on September, 13, 1982, andtherefore, the proceeding shall beconsidered as done or taken indue time,on the next day afterwards on which theCourt is opened. Section 10 of GeneralClauses Act lays down that whereby anyCentral Act or regulation made after thecommencement of this Act, any act or proceeding is directed or allowed to bedone or taken in any Court or office on acertain day or within a prescribed thenif the Court or office is closed on thatday or the last day of the prescribedperiod the act or the proceeding shall beconsidered as done or taken in due time.According to Mr..Hudlikar, filling of thecharge-sheet on September 13, 1982 onopening of the Court on that day wassaved by Section 10 of the GeneralClauses Act. It is true that the Courtwas closed on September 12, 1982 the daybeing Sunday and the charge-sheet isfiled on 13th September 1982. Thequestion is as to whether under the Codeany time has been prescribed for fillingof a charge-sheet. Mr.Hudlikar fairlyconceded that there is not prescribedperiod mentioned in the Code to file acharge-sheet. What is required undersection 10 of the General Clauses Act is

that any act or proceeding directed orallowed to be done or taken in any Courton a certain day or within prescribedperiod then the act or the proceedingshall be considered as done or taken indue time is it is done or taken on thenext day afterwards on which the Court isopened. As stated above no certain daywas fixed by the order of the Court orany period prescribed for filing of thecharge-sheet. The prosecution could havefiled the charge-sheet earlier thanSeptember 12, 1982. Except filing of thecharge-sheet on September 13, 1982nothing has been done as directed orallowed to be done and it is, therefore,that the provisions of section 10 of theGeneral Clauses Act will not apply. Anabsolute right accrued to the accused onthe expiry of 90 days and it cannot bedefeated by merely filling of thecharge-sheet on September 13, 1982. The right is accrued the moment 90 days areover, whether that 90th day falls on aholiday or not. The accused continued tobe in custody and, therefore, theprovisions of Section 167(2) lays downthat he can be in the custody only for aperiod of 90 days or 60 days, as the casemay be. As stated above the right isaccrued to the accused and it is the dutyof the Magistrate to inform the accusedthat he is entitled to be released onbail, and this absolute right of theaccused cannot be allowed to be defeatedby resorting to the provisions of section10 of the General Clauses Act. Thus, inthis view of the matter it must be heldthat section 10 of the General ClausesAct does not apply to this case.

"14:It is significant to note that bythe mere filling of a charge-sheet by theprosecution the right to be released of an accused person does not come to an endunder proviso (a) to section 167 (2) ofthe Code. As a matter of fact section167 of the Code does not mention filingof a charge-sheet by police. It laysdown that the Magistrate can grant remandin judicial custody for a period of 90days or 60 days, as the case may be, andon expiry of the said period there is anentitlement to an accused person to bereleased on bail and if he can furnish asecurity to the satisfaction of theMagistrate he shall be forthwithreleased. It is useful to refer to someother sections relating to filing of acharge-sheet by the prosecution. Section173 of the Code refers to a report of thePolice Officer on completion of theinvestigation. And if a report is filedunder section 173 then the Magistrateshould see as to whether the said case istriable by him or exclusively triable by the Court of Sessions. On filing of thereport and the charge-sheet by thepolice, if it appears to the Magistratethat the offence is exclusively triableby the Court of Sessions he shall committhe accused, after applying theprovisions of section 207 or 208 of theCode, as the case may be, subject to theprovisions of this Code relating to bailhe shall remand the accused to thecustody until last commitment is made.If the charge-sheet is filed within 90days or 60 days, as the case may be, theMagistrate gets power under section 209to remand the accused to custody untilsuch commitment has been made but if acharge-sheet is not filed it is notpossible for the Magistrate to know as towhether the offence is triable by himselfor exclusively by the Court of Sessionsand in the absence of charge-sheet thereis no alternative or discretion with the

Magistrate except to give benefit ofprovisions of proviso (a) to section 167(2) of the Code. So on merely filing ofthe charge-sheet after the expiry of theperiod of 90 days or 60 days, as the casemay be, the accused is not deprived of aright earned by him to be released onbail. Mr.Bhonsale is right, when heargues that if an accused is released onbail in view of the provisions of section167 (2) of the Code then the prosecutioncan only ask for cancellation of bail asprovided under section 437(5), which laysdown that any Court which has released anaccused person on bail under sub-section(1) or (2) of section 437 shall record inwriting his reasons for so doing.Similar is the provision under section439 (2) of the Code. It appears thatmerely on filing a charge-sheet after theexpiry of period of 90 days the accusedcannot be remanded to the custody because he has earned an absolute right to bereleased on bail under section 167(2) ofthe Code. In (Bashir and others v.State of Haryana), A.I.R. 1978 S.C., 55it is observed that "the power of theCourt to cancel bail if it considers itnecessary is preserved in cases where aperson has been released on bail undersection 437(1) & (2) and these provisionsare applicable to a person who has beenreleased under section 167(2)." It isfurther observed that "The fact thatbefore an order was passed under section167(2) the bail petitions of the accusedwere dismissed on merits is not relevantfor the purpose of taking action undersection 437(5). Neither is it a validground that subsequent to release of theaccused a challan was filed by thepolice. The Court before directing thearrest of the accused and committing themto custody should consider it necessary to do so under section 437 (5). This maybe done by the Court coming to theconclusion that after the challan hadbeen filed there are sufficient groundsthat the accused had committed anon-bailable offence and that it isnecessary that he should be arrested andcommitted to custody." In view of thisclear authority of Supreme Court, it isnot possible to contend that merelyfiling of a charge-sheet by theprosecution an absolute right earned byaccused under section 167(2) comes to anend. If at all the prosecution wants theaccused in custody it must file anapplication for cancellation of bailgranted by the Magistrate."

15. In a later decision, reported in 1988 MLJ285, the view taken earlier has been followed byanother learned Single Judge (V.P.Tipnis J, asHis Lordship then was) of this Court.

16. Ms.Kantharia, however, would rely upon adecision of the Supreme Court reported in 1995Supp.(3) S.C.C. 221 and particularly thefollowing observations therein:- "3:We find that the High Court wasin error --- both in the matter ofcomputation of the period of 90 daysprescribed as also in applying theprinciple of compulsive bail onentertaining a petition after the challanwas filed as the so-called "indefeasibleright" of the accused, in our view stooddefeated by efflux of time. Theprescribed period of 90 days, in ourview, would instantly commence eitherfrom 4-9-1993 (excluding from it3-9-1993) or 3-12-1993 (including in it2-12-1993). Clear 90 days have to expirebefore the right begins. Plainly put,one of the days on either side has to be excluded in computing the prescribedperiod of 90 days. Sections9and10ofthe GeneralClausesActwarrantsuch aninterpretation in computing theprescribedperiodof90days. Theperiodof limitationthuscomputedonreckoning27 daysofSeptember,31daysofOctoberand 30daysofNovemberwouldleave twoclear inDecembertocompute90daysandonwhichdatethechallanwasfiled,whenthe day runningwasthe90thday. TheHigh Courtwas,thus,obviouslyinerrorin assuming thaton2-12-1993when thechallan wasfiled,periodof90dayshadexpired.

17. She also relies upon the judgement of alearned Single Judge of Allahabad High Court andthe observations of the Supreme Court in A.I.R.1957 S.C. 279, Harinder Singh Vs. Kernel Singh.She submits that object of section 10 is topermit something to be done what could have done on a holiday, on the next day. Where, therefore,a period is prescribed for the performance of anact in a court or office, and that period expireson a holiday, then according to the section, theact should be considered to have been done withinthat period, if it is done on the next day onwhich the court or office is open. For thatsection to apply all that is required is thatthere should be period prescribed and that periodshould expire on holiday.

18. It is not possible to agree withMs.Kantharia. In the decision reported in 1986Cr.L.J. 2089 a Division Bench of the Hon’bleDelhi High Court has observed thus:- "8.A plain reading of Section 10 ofGeneral Clauses Act would, therefore, goto show that there should be a periodprescribed for the performance of an actin a Court or office. It is only in suchcases that if the last date of limitation prescribed expires on a holiday thenSection 10 comes into play and makes itpermissible to do that act on the nextday when the Court or office opens.Section 10 of the General Clauses Act,therefore, clearly pre-supposes thatthere must be in existence a positive actto be performed by person and for theperformance of which there is inexistence a period prescribed by law. Itwill have no application in any othersituation."

"10.A bare reading of the aforesaidprovision of the Code would go to showthat this provision merely confers poweron the Magistrate to commit to custody anaccused person and there is limitation of90 days and 60 days, as the case may be.This provision of the Code falls underChapter XII of the Code relating toinformation to the police and their powers to investigate. It is thus clearthat this is a power which is onlyexercisable during the course ofinvestigation of a case. The power tocommit an accused person to custody afterinvestigation is over and after thecharge sheet is presented before theCourt, is derived from Section 309,Cr.P.C. Any further remand to judicialcustody beyond 90 days and 60 dayswithout the charge sheet being presentedbefore the Court will be without theauthority of law."

"11.Sub-section (2) of Section 167 ofthe Code nowhere prescribes a periodwithin which the police is required topresent charge-sheet before the court nordoes it envisage the performance of anact by an accused person within aparticular period before a Court oroffice. In fact, nowhere in the Code a

period is prescribed for investigation toproduce the charge sheet before a Courtof law. Since the Legislature in itswisdom has not prescribed a period withinwhich the investigation has to presentcharge sheet against an accused personbefore a Court, it would be wrong to saythat the provision of Section 167(2) ofCode had prescribed the limit byimplication. If the Legislature hadaimed it to be so, there was nothing toprevent it from saying so explicitly. Byinvoking the doctrine of implication wewill be importing something in theprovision which the Legislature hasdeliberately refrained to do. It willnot only have the effect to distortingthe provision but will also defeat thelegislative intent.

12. In Sureya Reddy’s case (1985Cri.L.J. 939) (Supra), A division Bench of Orissa High Court has ruled out thatSection 10 of the General Clauses Act isattracted if the charge sheet against theaccused person could not be presented onthe 60th or 90th day for the reason ofbeing a public holiday and this is soruled on the ground that by implicationSection 167(2) does prescribe a periodfor presentation of charge sheet before aCourt. We have carefully considered thisproposition but we respectfully do notagree with the aforesaid view for thereasons stated above."

13. A contrary view to the aforesaidauthority, with which we agree, has beentaken by the High Court of Bombay inState of Maharashtra V. Sharad B.Sarda) (1983(2) Cri.L.C. 18) wherein itwas held that in a case such as this,Section 10 of the General Clauses Act hasno application as the Code does not prescribe any time limit for presentationof charge sheet by the investigation.The learned Judge further ruled thatafter the expiry of time of 90 or 60days, the right accruing to the accusedis absolute. One of our own Judges inCriminal Misc. (Main) 504 of 1985,Bhagwat Singh Vs. State has had anoccasion to consider the propositionregarding application of Section 10 ofGeneral Clauses Act and has opined thatit has no application and the accusedperson after the expiry of 90 days or 60days as the case may be, is entitled tobe released on bail. We are inrespectful agreement with the view takenin the aforesaid cases i.e. by thelearned Judge of Bombay High Court and bythe learned Judge of our own High Court.

14. Adverting to the scope and objectof sub-section (2) of Section 167

Cr.P.C., we may at once point out thatthis is essentially a power given to theMagistrates to be exercised pendinginvestigation. This power ceases toexist after the expiry of 90 days or 60days as the case may be and, there is nolawful authority left with the Magistrateto detain a person in custody for afurther period unless he offers him bailand the accused person fails to furnishthe same. This section in turn does notrequire an accused person to make anapplication for bail. The entitlement tobe released on bail accrues to him byoperation of statute at the end of 90days or 60 days as the case may be. Heis to be offered bail and has to bereleased unless he fails to furnish thesame. At the end of the expiry of theaforesaid period this right accruing tothe accused person would be deemed to beabsolute and indefeasible and, without

offering bail his further custody, maybe, for even a day, without the chargesheet being presented, would be withoutany jurisdiction. It is not a right ofdoing an act but a right to be freedwithout his asking for the same. Theprovisions of Section 167(2) of the Codecast a duty upon the Magistrate to offerbail. In this regard we may makereference also to Natabar Parida Vs.State of Orissa, A.I.R. 1975 S.C. 1465:(1975 Cri.L.J. 1212). While consideringthe scope of the provisions of Section167(2) of the Code their Lordships of theSupreme Court in para 8 of the judgementat page 1469 (of A.I.R. : (at page 1216of Cri.L.J) have made the followingobservations:- ".In serious offences ofcriminal conspiracy murders,dacoities, robberies byinter-state gangs or the like, itmay not be possible for thepolice, in the circumstances as they do exist in the variousparts of our country, to completethe investigation within theperiod of 60 days. Yet theintention of the Legislatureseems to be to grant nodiscretion to the Court and tomake it obligatory for it torelease the accused on bail. Ofcourse, it has been provided inproviso (a) that the accusedreleased on bail under section167 will be deemed to be soreleased under the provisions ofChap.XXXIII and for the purposesof that Chapter. That mayempower the Court releasing himon bail, if it considersnecessary so to do, to directthat such person be arrested andcommitted to custody as providedin sub-section (5) of Section 437occurring in Chapter XXXIII. Itis also clear that after thetaking of the cognisance thepower of remand is to beexercised under section 309 ofthe new Code. But if it is notpossible to complete, theinvestigation within a period of60 days then even in serious andghastly types of crimes theaccused will be entitled to bereleased on bail. Such a law maybe a "paradise for the criminals"but surely it would not be so, assometimes it is supposed to bebecause of the Courts. It wouldbe so under the command of theLegislature.

Similar views have been expressed

in respect of the scope of Section 167(2)in Noor Mohammad Vs. State, ILR (1978) 2Delhi 442; (1980 Cri.L.J. NOC 27)."

"15.Havinggivenour carefulconsideration to the facts of the presentcase, the arguments of the learnedcounsel for the parties, the relevantstatutes and case law on the subject, weare of the view that under the provisionof Section 167(2) of the Code an accusedperson against whom charge-sheet is notpresented before the Court within theperiod of 90 or 60 days, as the case maybe, is entitled to be offered bail as amatter of right. For this there is norequirement of law for him to apply. Thebail has to be offered to him and he canonly be detained in further custody if hefails to furnish bail. The onlyprovision under which an accused personcan be detained thereafter is Section 309

of the Code but for the exercise of thatpower the pre-requisite is that theremust be a charge-sheet pending before theCourt. This right of the accused person,therefore, under section 167(2) of theCode is absolute and indefeasible unlesshe fails to furnish the bail. We arealso in full agreement with theobservations made in Noor Mohammad’s case(supra) that Section 167(2) of the Codedoes not cease to apply even if thecharge sheet is submitted after 90 or 60days and the accused is entitled to askfor the right which had already accruedto him. We are also of the view thatsection 10 of the General Clauses Act isnot applicable in such a situation and itcannot be invoked to defeat the accruedright of an accused person to be freed.We are further of the view that theMagistrates should monitor the remandproceedings during investigation in such

a manner so that a full account of theremand is handy and bail is offered tosuch accused person at the end of 90 or60 days, as the case may be. We aregiving these reasons in support of ourorder dated 30th July 1986."

19. It is pertinent to note that the DivisionBench of Delhi High Court has followed thedecision of the learned Single Judge of thisCourt in preference to other view. May be theAllahabad High Court has distinguished the samebut it is pertinent to note from a perusal of thejudgement of learned Single Judge of AllahabadHigh Court that the issue has been decided byfollowing Raja Harinder Singh’s case (supra)which has been distinguished by the DivisionBench of Delhi High Court. In my view when it isnot demonstrated that the Judgment of this courtis either Per Iucuriam or no longer good law,judicial discipline requires that I follow thesame.

20. It is not necessary for me to go into anylarger question about the nature of Rightconferred by proviso to Section 167(2) of Cr.P.C.The decision of this Court so also of the DelhiHigh Court takes a view that Section 10 ofGeneral Clauses Act is inapplicable. The otherobservations and findings therein, are therefore,not germane in the facts of this case.

21. The Supreme Court decision relied upon byMs.Kantharia does not decide the point at all.That apart in the above quoted observations theSupreme Court, while computing the days in amonth which are required for computation of theperiod specified by 167(2) of Cr.P.C, hasincluded Sundays and Holidays as well. Hence,this decision is not on the point at all.

22. In my view, once learned Single Judges ofthis Court have taken a view that section 10 wasinapplicable, learned Special Judge was in error in relying upon the said provision (section 10 ofGeneral Clauses Act) and applying it in the factsof the present case. His attention was notinvited to the judgements of Supreme Courtapplying the provisions of Section 167(2) ofCr.P.C. to N.D.P.S. cases, principlesunderlying the same, nature of right conferredupon the accused thereunder. Further, learnedSpecial Judge’s attention was also not invited tothe Binding Judgements of this Court.

23. In these circumstances, the applicantdeserves to be enlarged on bail only on thisground. There is no dispute about the factualposition. In these circumstances following orderwould meet the ends of justice:-

i)The applicantarrested inconnection with Remand Application No.101of 2006 (N.D.P.S. Special Case No.162 of2006) by Air Intelligence Unit, Customs,Mumbai shall be enlarged on bail in the sum of Rs.1 lakh with one or two localsureties in the like amount.

ii)The bail is granted subject tocondition that the applicant will reportto Air Intelligence Officer, AirIntelligence Unit of Customs, Mumbai oncein a fortnight on every 1st and 15th ofevery month between 5.00 p.m. and 7.00p.m. The Applicant shall not leave Indiawithout prior permission of the SpecialCourt taking N.D.P.S. matters.

iii)The order of bail will be giveneffect only after the applicant furnishesto the investigating officer the detailsabout her place of residence and addresswhere she proposes to stay after he isenlarged on bail. The applicant will notchange her residential address thereaftertill the conclusion of trial withoutprior intimation to the Investigating officer.

iv)The bail is granted subject tocondition that the applicant shall notdirectly or indirectly, make anyinducement or threat to any prosecutionwitnesses and shall not in any manner tamper with the prosecution evidence.

v)The applicant shall cooperatewith the learned Trial Judge forexpeditious disposal of the case. Anyattempt by the applicant to delay thetrial may be a ground for cancellation ofbail.

vi)Any observation made in thisorder shall not be construed as anyfinding or any expression of opinion onthe merits of the case at the time oftrial.

vii)Application is disposed of inabove terms.

viii)Partiestoactonan

authenticated copy of this order.

(S.C.DHARMADHIKARI, J)