2020 (6) TMI 139 - HC - Indian Laws

Petitioner's Default Bail Request Denied Under Criminal Procedure Code Section 167(2)

The court dismissed the petitioner's prayer for default bail under Section 167(2) of the Criminal Procedure Code. The court found that the complaint filed ... Grant of Bail - Smuggling - whether prayer for grant of bail under Section 167(2) of Cr.P.C. can be considered after the learned Trial Judge takes cognizance of offences alleged in the complaint filed under Section 36A of Narcotic Drugs and Psychotropic Substances Act, 1985? - HELD THAT:- It is settled that once a challan is filed, an application under Section 167(2) of Cr.P.C. for grant of bail does not survive for consideration or remain enforceable. Though Mr.Hashmath Pasha, strenuously contended that NCB’s complaint having been filed without completing investigation, is a defective one, it cannot be gainsaid that the learned Special Judge has already taken cognizance of the offence and trial is in progress. There is no challenge to the validity of compliant nor the order of taking cognizance. Mr.Hashmath Pasha has relied only on Paragraph No.114 of the complaint and one line in the statement of objections filed by the NCB to buttress his point that investigation is pending - The relied upon documents described in Annexure-III to the complaint run to 586 pages. If the argument advanced by learned Senior Advocate is accepted, then NCB’s complaint and learned Special Judge’s order taking cognizance will have to be declared illegal and such finding cannot be recorded in this proceedings under Section 439 of Cr.P.C in the absence of specific challenge. The petitioner’s prayer for grant of default bail must fail and it is accordingly dismissed. Issues Involved:1. Whether the prayer for grant of bail under Section 167(2) of Cr.P.C. can be considered after the learned Trial Judge takes cognizance of the offences alleged in the complaint filed under Section 36A of the NDPS Act.Issue-wise Detailed Analysis:1. Consideration of Bail under Section 167(2) of Cr.P.C. Post-Cognizance:- The petitioner, accused No.2, sought bail under Section 167(2) of Cr.P.C. after the Special Judge for NDPS cases took cognizance of the offences. The petition was considered solely under Section 167(2) of Cr.P.C. and not on merits.- The petitioner argued that the complaint filed by the NCB was without the completion of the investigation, as indicated in paragraphs 114 to 117 of the complaint, which stated that the investigation was still pending. The petitioner contended that the complaint was filed to defeat the right to obtain bail under Section 167(2) of Cr.P.C. The statutory period for investigation under the NDPS Act is 180 days, extendable to one year upon a report by the Public Prosecutor. In this case, 180 days expired on 2nd November 2019, and one year expired on 2nd May 2020, without any extension report filed.- The respondent (NCB) countered that the complaint was filed within the statutory period of 180 days, and the Special Judge took cognizance on 31st October 2019, issuing process on 2nd November 2019. The petitioner did not challenge the order of cognizance, making the prayer for bail under Section 167(2) of Cr.P.C. not maintainable. The respondent clarified that the investigation was pending only concerning accused No.4, who was absconding.- The court noted that the Special Judge had indeed taken cognizance of the offences and issued process, and the order remained unchallenged. The court also observed that the NCB's complaint summed up the contraventions of various provisions of the NDPS Act against the petitioner.- The petitioner relied on several judgments, including *Deepak Mahajan* and *Anupam J. Kulkarni*, arguing that a complaint under the NDPS Act should be filed only after the completion of the investigation. However, the court found that the authorities cited did not support the petitioner's case, as the complaint stated that the investigation was still pending on some points.- The court referred to the Supreme Court's decision in *Dinesh Dalmia v. CBI*, which held that once a charge sheet is filed, the right to default bail under Section 167(2) of Cr.P.C. ceases. The court also cited *Sanjay Dutt v. State* to emphasize that the right to default bail does not survive after the filing of the charge sheet.- The court concluded that the petitioner's argument that the NCB's complaint was defective due to the pending investigation could not be accepted. The Special Judge had already taken cognizance of the offences, and there was no challenge to the validity of the complaint or the order of taking cognizance.- Therefore, the court dismissed the petitioner's prayer for default bail under Section 167(2) of Cr.P.C.