IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
N.D.P.S. BAIL APPLICATION NO.946 OF 2018
IN N.D.P.S. REMAND APPLICATION NO.626 OF 2018
CNR NO. : MHCC02н016422н2018
Purohit Devesh Jagdishbhai,
]
Age : 58 years,Occ.: Proprietor of Company,]
R/o.: Bн5, Revadiyadham Duplex,
]
New VIP Road, Karelibag,
]
Vadodara, Gujaratн390018.

]
Accused in J.C.

]
… Applicant/
Accused No.5
V/s.
Intelligence Officers,
]
Directorate of Revenue Intelligence,
]
Mumbai Zonal Unit, Mumbai.

]
F.I.R. No.75/2018.

]
… Respondent
CORAM : HIS HONOUR THE SPECIAL JUDGE
M. S. MUNGALE (C.R.NO.44)
DATE : 1st February, 2019.
Shri. Vimal Chandra Jha, Ld. Adv. for applicant/accused No.5.
Smt. Anuradha Mane, Ld. Spl.P.P. for respondent/D.R.I.
ORDER
1.

The applicant/accused No.5 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
н2н
BA 946/18 in RA 626/18
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 13/06/2018,
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.
4.

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
н3н
BA 946/18 in RA 626/18
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. Vimal Chandra Jha 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
Mathew Pinto and another Vs. State of Maharashtra, 2005 (1) ALL
MR (Cri) 290, are relied upon.

н4н
7.

BA 946/18 in RA 626/18
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
Supreme Court in Narendra Kumar Amin Vs. C.B.I. and another
н5н
BA 946/18 in RA 626/18
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
proviso to subнsection (2) of Section 167 of the Code, even in
н6н
BA 946/18 in RA 626/18
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
provisions of the Code of Criminal Procedure. The right
н7н
BA 946/18 in RA 626/18
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.

Further there is also no substance in the contention of the
learned Spl.P.P. that as per the order passed by this Court, the
complaint is filed on 21/12/2018 and as such, the application for
default bail filed by the applicant/accused person before filing the
complaint is not maintainable. Admittedly, the accused Nos.1 and 4 had
challenged the order of this Court granting extension of 14 days time to
the respondent/complainant for filing the chargeнsheet/complaint and
н8н
BA 946/18 in RA 626/18
by the order dated 24/01/2019, the said order is set aside by the
Hon’ble Bombay High Court and therefore, it is to be presumed that the
request of the respondent/complainant for extension of time beyond
180 days for filing the chargeнsheet/complaint was rejected by this
Court and as such, the respondent/complainant was under obligation to
file the chargeнsheet/complaint on or before expiry of 180 days from
the date of arrest of the respective applicant/accused person.
12.

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
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.
13.

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
н9н
14.

BA 946/18 in RA 626/18
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
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
15.

The same legal ratio is reiterated in the judgment of the
н 10 н
BA 946/18 in RA 626/18
case of Union of India (UOI) Vs. Nirala Yadav reported in AIR 2014
SC 3036 (supra).
16.

In this matter, though, this Court had extended the period
of 14 days for filing the chargeнsheet/complaint by the complainant,
this order was challenged by the accused persons in the Hon’ble
Bombay High Court and in the meantime, except the accused Nos.6 and
12, other accused persons filed their respective applications for
statutory bail under Section 167 (2) of the Cr.P.C. r/w. 36нA of the
N.D.P.S. Act. The accused No.6 filed his application on 21/12/ 2018 on
which day the complaint is filed by the complainant. The learned
Advocates for the accused persons nor the learned Spl.P.P. pressed
hearing of the said bail applications till the order was passed by the
Hon’ble Bombay High Court on 24/01/2019. Certainly, the object of not
pressing the applications for hearing was bona fide as orders on said
bail applications were dependent on the order passed in Writ Petition
by the Hon’ble Bombay High Court. Thus, deliberately or with malafide
intention, such applications were not kept pending. Therefore, though,
before hearing of the bail application, the complaint is filed by the
complainant, the indefeasible right accrued in favour of the accused/
applicant for getting statutory bail is not extinguished.
17.

So far as the present applicant/accused is concerned, he
was arrested on 13/06/2018 and produced before the learned
Metropolitan Magistrate for remand on the same day. As such, the
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 10/12/2018 and he has
filed the bail application on 20/12/2018. The complaint is filed on
н 11 н
BA 946/18 in RA 626/18
21/12/2018. As such, in view of the aforesaid legal ratio laid down by
the Hon’ble Supreme Court, the accused No.5 is entitled for release on
statutory bail. Hence, I pass the following order :н
ORDER
1.

Bail Application No.946/2018 is allowed in the following
terms :н
(i)
The applicant/accused No.5 Purohit Devesh Jagdishbhai be
released on bail on his executing P.R. bond of Rs.1,00,000/н and surety
of the like amount.
(ii)
The applicant/accused shall be entitled to submit one or
more sureties for compliance of the surety amount.
(iii)
The applicant/accused shall report to the Intelligence
Officer on the last Monday of each month between 11.00 a.m. to 2.00
p.m. till final disposal of the case against him.
(iv)
The applicant/accused shall maintain his diary about
reporting his presence to the Intelligence Officer and shall produce the
same for examination by the Court on each adjourned date.
(v)
The applicant/accused shall not leave India without prior
permission of this Court.
(vi)
If the applicant/accused person possess Passport, he shall
produce the Passport in this Court.
(vii)
Before release on bail, the applicant/accused shall submit
on record his photograph and documentary proof of his residential
address.

н 12 н
(viii)
The
applicant/accused
BA 946/18 in RA 626/18
shall
not
tamper
with
the
prosecution evidence.
2.

Application stands disposed off accordingly.

(M. S. Mungale)
N.D.P.S. Special Judge,
City Civil & Sessions Court,
Gr. Mumbai.

Date : 01/02/2019.
Dictated on
Transcribed on
Signed on
: 01/02/2019.
: 02/02/2019.
:
УCERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.Ф
UPLOAD DATE AND TIME
06/02/2019 at 3.05 p.m.

NAME OF STENOGRAPHER
Bahushruta Y. Jambhale
Name of the Judge ( With Court H.H.J. Shri. M. S. Mungale
Room No.)
(Court Room No.44)
Date
of
Pronouncement
JUDGEMENT/ORDER
of
01/02/2019.

JUDGMENT/ORDER signed by
P.O. on
06/02/2019.

JUDGEMENT/ORDER uploaded on
06/02/2019.