IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
N.D.P.S. BAIL APPLICATION NO.955 OF 2018
IN
N.D.P.S. REMAND APPLICATION NO.626 OF 2018
IN
F. NO.DRI/MZU/C/INTн75/2018
CNR NO. : MHCC02н016965н2018
Mayur Chandrakant Sardani,
]
Aged 44 years,
]
Having permanent residence at
]
Maa Kailash Dhara Park, Street No.2,
]
near Maninagar Society, Raiya Road,
]
Rajkot Pin 360 005, Gujarat.

]
… Applicant/
Accused No.6
V/s.
Intelligence Officer,
]
Directorate of Revenue Intelligence,
]
Mumbai Zonal Unit, Mumbai.

]
… Respondent
CORAM : HIS HONOUR THE SPECIAL JUDGE
M. S. MUNGALE (C.R.NO.44)
DATE : 1st February, 2019.
Shri. Ayaz Khan, Ld. Adv. for applicant/accused No.6.
Smt. Anuradha Mane, Ld. Spl.P.P. for respondent/D.R.I.

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BA 955/18 in RA 626/18
ORDER
1.

The applicant/accused No.6 has filed this application under
Section 167 (2) of the Code of Criminal Procedure (For short, the
Cr.P.C.) r/w. Section 36нA of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (For short, the N.D.P.S. Act) for grant of default
bail with contention that from the day of his arrest dated 12/06/2018,
within 180 days the chargeнsheet/complaint is not filed by the
respondent/complainant.
2.

It is contended that though, as per the remand order dated
07/12/2018 on the application of the respondent/complainant for
extension of time for filing the chargeнsheet, this Court had extended
the time upto 21/12/2018, the said order is not valid. The special
report contemplated under Section 36нA of the N.D.P.S. Act was not
filed by the learned Spl.P.P. So also, the respondent/complainant had
not given proper reasons for extension of time for filing of the chargeн
sheet.
3.

At the same time, the accused No.1 Rahul Shedge had filed
Criminal Application No.1448 of 2018 and the accused No.4 had filed
Criminal Application No.1459 of 2018 in the Hon’ble Bombay High
Court by which they had challenged the order dated 07/12/2018. Till
decision on the said two applications by the Hon’ble High Court, these
applications were not pressed for hearing. By common order dated
24/01/2019, their Lordships of the Hon’ble Bombay High Court allowed
both the said Criminal Applications and to the extent of order of this
Court dated 07/12/2018 granting 14 days extension for filing the
chargeнsheet is set aside.

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4.

BA 955/18 in RA 626/18
The respondent/complainant has contested this bail
application by filing reply. The respondent/complainant has contended
that as per the application filed by the respondent/complainant for
extension of time for filing the complaint, this Court had extended the
time for 14 days for filing the complaint against the accused persons
and thereafter, on 21/12/2018, the complaint is filed in the Court,
therefore, the application for default bail under Section 167(2) of the
Cr.P.C. r/w. Section 36нA of the N.D.P.S. Act is not maintainable and
liable to be dismissed.
5.

Heard the arguments submitted by the learned Advocate
Shri. Ayaz Khan for the applicant/accused and the learned Spl.P.P. Smt.
Anuradha Mane for the respondent/complainant.
6.

It is argued on behalf of the applicant/accused person that
the order dated 07/12/2018 passed by this Court was challenged by the
accused No.1 and the accused No.4 in the Hon’ble Bombay High Court
and by order dated 24/01/2019, the order of this Court is set aside and
as such, it has to be presumed that the order of extension of time for
filing the chargeнsheet beyond period of 180 days as provided under
Section 36нA of the N.D.P.S. Act was not extended and as such, the
applicant/accused persons have got indefeasible right for statutory bail
as provided under Section 167 (2) of the Cr.P.C. In support of the said
arguments, various case laws including (1) the judgment of the
Hon’ble Supreme Court in the case of Dr. Bipin Shantilal Panchal Vs.
State of Gujarat reported in 1996(1) SCC 718, (2) the judgment of
the Hon’ble Supreme Court in the case of Union of India (UOI) Vs.
Nirala Yadav reported in AIR 2014 SC 3036, and (3) the judgment
of the Hon’ble Bombay High Court in the case of Rajubhai @ Jacob
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BA 955/18 in RA 626/18
Mathew Pinto and another Vs. State of Maharashtra, 2005 (1) ALL
MR (Cri) 290, are relied upon.
7.

On the other hand, the learned Spl.P.P. has contended that
as per the time granted by this Court by order dated 07/12/2018, the
chargeнsheet/complaint
is
filed
in
the
Court
by
the
respondent/complainant on 21/12/2018 and as such, there is no
negligence or default on the part of the respondent/complainant in
filing the complaint and as such, the application for default bail filed by
the applicant/accused is not maintainable. The learned Spl.P.P. has
further contended that the bar of granting bail under Section 37 of the
N.D.P.S. Act is also applicable for the statutory bail provided under
Section
167(2)
of
respondent/complainant
the
has
Cr.P.C.
made
and
out
on
merits,
the
case
against
the
applicant/accused person, therefore, the bail application filed by the
applicant/accused is liable to be dismissed. It is further contended that
the
indefeasible right for statutory bail can be exercised only in
between the period of default and filing of the chargeнsheet/complaint.
8.

In support of her arguments, the learned Spl.P.P. has relied
upon (1) the judgment of the Hon’ble Rajasthan High Court in the
case of Harendra Alias Hari Singh Vs. State of Rajasthan reported in
1994 Cri.L.J. 50, (2) the judgment of the Hon’ble Punjab and
Haryana High Court in the case of Sajjan Singh Vs. State of Haryana
dated 28/05/2012, (3) another judgment of the Hon’ble Punjab and
Haryana High Court in the case of Rafiq Mohd. and another Vs.
State of Punjab, 1994 Cri.L.J. 3366, (4) the judgment of the Hon’ble
Supreme Court in the case of Mustaq Ahmed Mohammed Isak and
others Vs. State of Maharashtra, (5) the judgment of the Hon’ble
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Supreme Court in Narendra Kumar Amin Vs. C.B.I. and another
dated 15/01/2015, (6) the judgment of the Hon’ble Supreme Court
in the case of Union of India Through C.B.I. Vs. Nirala Yadav @ Raja
Ram (The
said case law is also
cited on behalf of the
applicants/accused), and (7) the judgment of the Hon’ble Supreme
Court in Sanjay Dutt Vs. State Through C.B.I., dated 09/09/1994.
9.

So far as the first contention of the learned Spl.P.P. that the
bar of granting bail provided under Section 37 of the N.D.P.S. Act is
also applicable to the statutory bail is concerned, the legal ratio is
already set at rest by the Three Judge Bench of the Hon’ble Supreme
Court by the judgment dated 08/01/1996 in Dr. Bipin Shantilal
Panchal’s case (supra). In the said judgment, in para 4, it is observed
by the Lordship as under :н
У4.

The learned counsel, appearing for the appellant,
urged that the statutory period prescribed by proviso (a) to
subнsection (2) of Section 167 of the Code of Criminal
Procedure during which the appellant could have been kept
in custody, pending investigation, had expired, because of
which the appellant should have been released on bail and at
that stage there was no question of application of Section 37
of the N.D.P.S. Act. Recently, this Court has considered the
question of applicability of proviso to subнsection (2) of
Section 167 of the Code in respect of an accused under
Narcotic Drugs And Psychotropic Substances Act in the case of
Union of India v. Thamisharasi and others, 1995(2) Recent
Criminal Reports 531 : JT 1995(4) SC 253 and it has been
held that Section 37 does not exclude the application of the
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BA 955/18 in RA 626/18
proviso to subнsection (2) of Section 167 of the Code, even in
respect of persons who are accused for offences under
Narcotic Drugs And Psychotropic Substances Act. But it is an
admitted position that the chargeнsheet has been filed on
23.5.1994 and now the appellant is in custody on the basis of
orders of remand passed under the other provisions of the
Code. Whether the accused who was entitled to be released on
bail under proviso to subнsection (2) of Section 167 of the
Code, not having made an application when such right had
accrued, can exercise that right at a later stage of the
proceeding, has been examined by a Constitution Bench of
this court in the case of Sanjay Dutt v. State through C.B.I.,
Bombay, (II), 1994 (3) Recent Criminal Reports 684 : (1994)
5 SCC 410 and it has been said:
“The indefeasible right of the accused to be released on
bail in accordance with Section 20(4) (bb) of the TADA
Act read with Section 167(2) of the Code of Criminal
Procedure in default of completion of the investigation
and filing of the challan within the time allowed, as held
in Hitendra Vishnu Thakur is a right which enures to,
and is enforceable by the accused only from the time of
default till the filing of the challan and it does not
survive or remain enforceable on the challan being filed.
If the accused applies for bail under this provision on
expiry of the period of 180 days or the extend period, as
the case may be, then he has to be released on bail
forthwith. The accused, so released on bail may be
arrested and committed to custody according to the
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BA 955/18 in RA 626/18
provisions of the Code of Criminal Procedure. The right
of the accused to be released on bail after filing of the
challan, notwithstanding the default in filing it within
the time allowed, is governed from the time of filing of
the challan only by the provisions relating to the grant
of bail applicable at that stage.”
Therefore, if an accused person fails to exercise his right to be
released on bail for the failure of the prosecution to file the
chargeнsheet within the maximum time allowed by law, he
cannot contend that he had an indefeasible right to exercise it
at any time notwithstanding the fact that in the meantime
the chargeнsheet is filed. But on the other hand if he exercises
the right within the time allowed by law and is released on
bail under such circumstances, he cannot be rearrested on the
mere filing of the chargeн sheet, as pointed out in Aslam
Babalal Desai v. State of Maharashtra, 1993 (1) Recent
Criminal Reports 600 : (1992) 4 SCC 272.Ф
10.

Therefore, there is no substance in the submission of the
learned Spl.P.P. that the bar of granting bail provided under Section 37
of the N.D.P.S. Act is applicable to the statutory bail also.
11.

So far as the further submission of the learned Spl.P.P. that
the right of statutory bail under Section 167(2) of the Cr.P.C. r/w. 36нA
of the N.D.P.S. Act can be exercised by the applicant/accused from the
date of default till filing of the chargeнsheet is concerned, the law is
settled by their Lordships of the Hon’ble Supreme Court in various
judgments including the judgment in the case of Union of India Vs.
Nirala Yadav (supra). The same case law is relied upon by the parties
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BA 955/18 in RA 626/18
to this proceeding. In the said judgment, in paragraph 7, the legal ratio
earlier laid down in Hitendra Vishnu Thakur’s case and Sanjay Dutt’s
case is discussed. Further in paragraph 8 of the judgment, the well
known case law of Uday Mohanlal Acharya Vs. State of Maharashtra
reported in (2001) 5 Supreme Court Cases 453 is also discussed.
12.

In Hitendra Thakur’s case and in Sanjay Dutt’s case, Their
Lordships of Hon’ble Supreme Court had laid down the legal ratio that,
Уthe indefeasible right of the accused to be released on bail in
accordance with Section 20(4)(bb) of the TADA r/w. 167(2) of the
Cr.P.C. in default of completion of investigation and filing of the
challan within the time allowed, is to be exercised and after filing of
the challan, the said right does not survive or remain enforceable.Ф
13.

In Uday Acharya case (supra), it is held by majority
judgment that Уthe indefeasible right of the accused does not survive
or remain in force on the challan being filed, if already not availed of,
as has been held by the Constitution Bench of the Supreme Court in
Sanjay Dutt’s case. The expression, У if already not availed ofФ used in
Sanjay Dutt’s case 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) the proviso to subн
section (2) Section 167 if the accused files an application for bail, that
no challan has been filed and he is prepared to offer the bail that
ordered, and it is found as a fact that no challan has been filed within
the period prescribed from the date of the arrest of the accused, 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
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BA 955/18 in RA 626/18
furnished the same. Within the aforesaid interpretation of the
expression Уavailed ofФ, if the chargeнsheet 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 makes the application for default bail, 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
matter remains pending before the higher forum for consideration, a
chargeнsheet is filed, the so called indefeasible right of the accused
would not stand extinguished thereby and on the other hand, the
accused has to be released on bail.Ф
14.

The same legal ratio is reiterated in the judgment of the
case of Union of India (UOI) Vs. Nirala Yadav reported in AIR 2014
SC 3036 (supra).
15.

So far as the present applicant/accused No.6 is concerned,
he was arrested on 12/06/2018 and produced before the learned
Metropolitan Magistrate for remand on the same day. As such, the
statutory period of 180 days as provided under Section 36нA of the
N.D.P.S. Act r/w. 167(2) of the Cr.P.C. was completed on 09/12/2018
and he has filed the bail application on 21/12/2018 on which date the
chargeнsheet/complaint was filed by the respondent/complainant before
Registrar. On the same day, the said chargeнsheet was placed before the
Hon’ble Principal Judge of this Court and it was ordered to be
numbered and accordingly, the said chargeнsheet/complaint was
numbered as N.D.P.S. Special Case No.214/2018. As such, the
cognizance of the said complaint was taken by the Court though, the
order of issue of process was passed on 03/01/2019. As per the
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BA 955/18 in RA 626/18
aforesaid legal ratio laid down in Sanjay Dutt’s case, indefeasible right
of bail under Section 167(2) of the Cr.P.C. can be exercised by the
accused from the date of default of filing of the chargeнsheet, till filing
of the chargeнsheet and once the chargeнsheet is filed, such right is
extinguished.
16.

The bail application was presented on behalf of the
applicant/accused No.6 before the Registrar on 21/12/2018 and the
Registrar had directed to put up the said bail application before the
Court on 24/12/2018. No request was made by the learned Advocate
for the applicant/accused to put up the said bail application
immediately on the same day before the Court. As such, for the first
time, the said bail application was produced before the Court for further
orders on 24/12/2018. The legal ratio in Uday Acharya case (supra) is
not applicable in this matter. As such, there is no doubt that the
applicant/accused No.6 has not exercised his right of filing application
for statutory bail before filing of the chargeнsheet/complaint, therefore,
he is not entitled for release on bail under Section 167(2) of the Cr.P.C.
r/w. 36нA of the N.D.P.S. Act. Hence, I pass the following order :н
ORDER
Bail Application No.955/2018 stands rejected and
disposed off accordingly.

Date : 01/02/2019.
Dictated on
Transcribed on
: 01/02/2019.
: 02 and 06/02/2019.

(M. S. Mungale)
N.D.P.S. Special Judge,
City Civil & Sessions Court,
Gr. Mumbai.
Signed on
:
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BA 955/18 in RA 626/18
УCERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.Ф
UPLOAD DATE AND TIME
07/02/2019 at 5.00 p.m.

NAME OF STENOGRAPHER
Bahushruta Y. Jambhale
Name of the Judge ( With Court
Room No.)

H.H.J. Shri. M. S. Mungale
(Court Room No.44)
Date
of
Pronouncement
JUDGEMENT/ORDER
01/02/2019.

of
JUDGMENT/ORDER signed by
P.O. on
07/02/2019.

JUDGEMENT/ORDER uploaded on
07/02/2019.