2020 (6) TMI 139
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....and Psychotropic Substances Act, 1985 ('NDPS Act' for short). He was arrested on 3rd May 2019 and produced before the Special Judge on 4th May 2019. Earlier he had moved a bail petition (Crl.P No.4448/2019) and the same has been dismissed by this Court on 11th October 2019. 5. This second petition is filed pleading inter alia that on completion of investigation, NCB have filed complaint against petitioner and three others before the Special Court for offences punishable under Section 8(c), 8A read with Sections 22, 23, 25, 27A, 27B, 29, 32B(a) of the NDPS Act and the case has been registered on the file of learned Special Judge. Thus, this petition has been presented after the learned Special Judge has taken cognizance of offences. 6. It is relevant to record that when the petition was taken up for hearing, Mr. Hashmath Pasha, learned Senior Advocate submitted that this petition may be considered for grant of bail only under Section 167(2) of Cr.P.C. Accordingly, this petition is considered under Section 167(2) of Cr.P.C and not on merits. 7. In support of this petition, learned Senior Advocate made following submissions: * that complaint filed by the NCB is without completion....
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....of the NDPS Act because NCB has stated in its complaint that investigation of the case is still pending on several points. He also adverted to the Statement of Objections filed on behalf of NCB and pointed out that NCB has reiterated its stand that investigation is still pending on various points and bail is opposed on the ground that, if released, petitioner will remove the evidence which are to be collected. He argued that 'Investigation' as defined under Section 2(h) of the Code of Criminal Procedure includes all proceedings under the Code for collection of evidence. Only after completion of investigation, Police are required to file Report under Section 173 of Cr.P.C. In case of NDPS Act, an Officer of the Central Government is authorized to file a complaint which is pari materia with a charge sheet or challan under Section 173 of Cr.P.C. 11. Thus, in substance learned Senior Advocate's argument is, investigation is still pending. Therefore, the complaint which is pari materia with the charge-sheet is not valid in law. The maximum statutory period of one year has expired on 2nd May 2020. Therefore, petitioner is entitled for default bail. Though this argument appears attractiv....
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....pex Court in the said decision that if the investigation is not completed within the prescribed period, then accused will have to be released on bail as provided under Section 167(2) of Cr.P.C. 16. The ground with regard to completion of investigation is a matter of fact and cannot be decided on oral submissions. Curiously, averment in the petition is contrary to this stand wherein it is clearly stated that NCB has filed the compliant after completion of investigation. Therefore, the authorities in Deepak Mahajan and Anupam J. Kulkarni do not lend any support to petitioner's case. 17. The next authority relied upon by learned Senior Advocate is Sanjay Kumar Kedia Alias Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau and Another (2009) 17 SCC 631. In the said case, the point involved is whether extension of time granted to the Investigating Department under Section 36A(4) of NDPS Act was in accordance with law. On the facts of that case, Supreme Court of India has recorded that extension granted did not satisfy the conditions laid down and therefore, struck it down. The question of extension of time is not the issue in this case and therefore the said authority als....
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....nding. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code. 39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code." (Emphasis supplied) 21. It is relevant to record that in Sanjay Dutt's case, at the request made by the Additional Solicitor General, the Apex Court has clarified the decision in Hitendra Vishnu Thakur Vs. State of Maharas....
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....ready not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. TheDivision Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused ap....