TaxTMI 
TaxTMI 
2019 (11) TMI 1507
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....the date when the bail was granted, an application had been filed on behalf of this accused under Section 167(2) Cr.P.C., seeking to release the said accused on bail. Simultaneously, the prosecution had also filed an application seeking to file a further complaint. The Learned Special Judge, who took into consideration both the applications, on hearing both the Counsels, had thought it fit to grant bail to this accused. The relevant portion of the order in which the Learned Judge had given his reasons for grant of such bail is as follows : "18. As such the filling of the complaint as against the petitioner by the respondent after filing this petition by the petitioner would not stand in any way to defeat the rights of the petitioner in getting default bail as he has already offered to exercise his indefeasible right and willing to furnish bail bonds as directed by this Court. As the petition has been filed only for default bail, the merits and seriousness of the case and the twin conditions stipulated in Section 37 of NDPS Act will not come into play while dealing with this petition as per the findings of the Hon'ble Apex Court stated above. Considering the above stat....
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....the same day at 04.25 p.m., the prosecution filed an additional complaint in which they have also included as accused No. 11, M. Ravindran @ Praveen @ Rex S/o. Mayandi and as accused No. 12, G. Prathap @ Mike S/o. Late Chiranjeevi. They have also stated about the further investigation on information received from DRI Mumbai Zonal Unit regarding the involvement of A11 and A12 in facilitating a syndicate involved in illicit manufacture of Narcotics at Mumbai. They conducted search at the residence of A11 at Chennai and seized indiscriminating documents. The statements were also recorded from A11, M. Ravindran and he was arrested on 4-8-2018 and remanded to judicial custody. Thereafter, on information provided by A11, A12 was also summoned under Section 67 of the NDPS Act, 1985 and his statements were also recorded relating to his role in the seizure of Ketamine and Pseudo Ephedrine and relating to his knowledge of illegal manufacture of Narcotic drugs and its transport to Mangadu and further packing of the illegal drugs for illegal export out of India. It was also stated that substantial further information were received and he was also arrested and remanded on 29-9-2017. It was also....
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....ing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already 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 Cr.P.C., ceases to apply." [Emphasis Supplied] 11. The term if already not availed has been further examined in (2001) 2 SCC 453, Uday Mohanlal Acharya v. State of Maharashtra. In the said judgment, the Hon'ble Supreme Court had finally recorded their conclusions as follows : "1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produc....
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....availed of" used by this Court in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. With the aforesaid interpretation of the expression "availed of" if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the....