IN THE COURT OF THE XXXIII ADDL.CITY CIVIL & SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU. CCH.33. PRESENT: SMT. B.S. JAYASHREE, LL.M., XXXIII ACC & SJ & SPL.JUDGE (NDPS), BENGALURU. DATED: THIS THE 3 rd DAY OF SEPTEMBER 2022 Crl.Misc.No.8528/2022 Petitioner : B Thyagaraju @ Thyaga @ Tej, (accused No.2) S/o.Basavaraju, 27 years, No.123, Yellamma Temple road, Rathnamma building, 14th A Cross, Nagaravapalya, CV Ramananagar Post, Bengaluru. (By Sri JVS., Adv.) V/S. Respondent : State by SHO, Bangalore Railway PS Bengaluru (By Public Prosecutor) O R D E R The present petition is filed by the petitioner U/s.167(2) of Cr.P.C., to enlarge him on statutory bail, in Cr.No.14/2022 of Bangalore Railway PS of U/Sec 20(c) & 22(c) of NDPS Act.

2. The grounds urged by the petitioner for grant of bail

are as under: Petitioner has contended that he is in judicial custody for more than 180 days and so far prosecution has not filed charge sheet and for the alleged offences maximum detention permissible U/s.167 of Cr.P.C., is 180 days. Petitioner is permanent resident of the address shown in the cause title of the petition and he is ready to offer sureties and obey conditions which are going to be imposed by this Court. Hence, sought for statutory bail.

3. Learned P.P. filed objections and opposed the

petition contending that FSL report is not yet received and therefore, charge sheet is not filed. Further, prosecution has filed 36A(4) application seeking extension of time to file charge sheet. If the petitioner is released on bail, he may continue the profession of narcotic drug selling, and he may abscond and tamper evidence of the prosecution. Hence, requested for dismissal of the petition. CCH­33 Crl.Misc.No 8528/2022 3

4. Heard the arguments of both sides and perused the

records.

5. The points that arise for my consideration are as

here under:

1. Whether the petitioner is entitled for statutory bail U/s.167(2) of NDPS Act?

2. Whether the application of prosecution filed U/s.36A(4) of Cr.P.C., deserves consideration?

3. What order?

6. My findings on the above points are as under:

Point No.1: In the Affirmative Point No.2: In the Negative Point No.3: As per the final order for the following:

REASONS

7. POINT NO.1 & 2:­ The PSI of Bengaluru

cantonment Railway PS., has put the criminal law into motion. The gist of the allegation reads as here under:­ On 24.02.2022 at about 17:45 hours,, complainant was on patrolling duty looking for the persons who transport narcotic drugs in the railways. The complainant and his staff came in the train from Bangarpet to Bangalore. At Whitefield railway station they got down from the train and started watching the passengers getting down from the train. A person carrying two bags got down from the train and was sitting on the bench. On suspicion they enquired him. He has stated that he is carrying ganja in the bags which he bought from Andhra Pradesh to give the same to accused No.2 who is standing at short distance. On seeing them, accused No.2 tried to escape. They surrounded and apprehended both the accused. On search of the bag they found 20 Kgs., 500 grams of ganja. The entire quantum of ganja and the vehicle was seized. A detail mahazar is drawn and the accused were arrested. A detail report is prepared submitted before SHO. The said report is the basis to the register case is against the Accused in crime No.14/2022 for the offence punishable under Sec.20(c), 22(c) of NDPS Act.

8. On careful perusal of the material placed before the

court, petitioner along with accused No.1 was arrested and produced before the court on 25.2.2022 with remand by the I.O for the offences punishable U/s. 20(C) & 22(C) of NDPS Act. It is noticed that prosecution neither filed charge sheet nor sought permission to extend time for investigation, CCH­33 Crl.Misc.No 8528/2022 5 within statutory period of 180 days. Further the application filed by the prosecution seeking extension of time on 2.9.2022 that is after the petition of petitioner seeking statutory bail. Further on careful scrutiny of records prosecution has not made any application seeking extension of time prior to 180 days to file final report in the case. It is necessary for me to refer to the dictum of Hon'ble Apex Court reported in 2020 SCC online SC 529 in S Kasi Vs., State through the Inspector of Police Samaynallur police station Madurai district. In the aforesaid dictum Hon'ble Apex court While reiterating the scope and object of section 167(2), has observed that:­ the provisions of Section 57 as well as Section 167 are supplementary to each other, which recognize right of personal liberty of a person as enshrined in the constitution of India. It has been held that the proviso to sub section 2 of section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation thereby affecting the liberty of a citizen. The Apex court has held that the right for default bail is indefeasible right, which cannot be allowed to be frustrated by the prosecution on any pretext. The Apex court after referring to several earlier judgments has reiterated the except under special enactments, which have modified the provisions of the code including section 167 empowering the court to extend the period, no court can directly or indirectly extend such period of 90 days or 60 days, as the case may be. On looking to the principles enunciated in the aforesaid dictum, as per the observations of the Hon'ble Apex Court, I proceed to hold that the indefeasible right of accused can't be defeated by prosecution on the ground of non filing of FSL report by the investigating agency. In this case on perusal of the records, investigating agency has not submitted final report even after lapse of statutory period of 180 days. That apart the prosecution has not made any application for extension of time U/Sec.36(A)(4) of NDPS Act prior to 180 days. Further, the reason assigned by the prosecution about non receipt of FSL report without a satisfactory report about progress of investigation could not be entertained to disdain the petition of the petitioner seeking statutory bail. The petitioner is in judicial custody since from 25.2.2022 till this date. Period of 180 days is elapsed. In this case the charge sheet came to be filed by the investigating agency after the completion of statutory period. Thus, I hold that the petition filed by the petitioner deserves to be entertained. Accordingly, I answer Point No.1 in the affirmative and point No.2 in the negative. CCH­33 Crl.Misc.No 8528/2022 7

8. Point No.2:­ In the result, I proceed to pass following:

ORDER

The petition filed by the petitioner U/Sec.167(2) of Cr.P.C is hereby allowed. The petitioner is entitled to be released on bail, for the offence punishable U/Sec 20(C) & 22(C) of NDPS Act on executing personal bond of Rs.1,00,000/­ with two sureties for likesum subject to following conditions.

1. Petitioner shall not tamper the witness or abscond.

2. Petitioner shall co­operate with I.O for investigation.

3. Petitioner shall appear before the IO when were required for the purpose of investigation. 4.Petitioner shall not leave the jurisdiction of this court.

5. Breach of any of the conditions by the accused would entail cancellation of bail. Call on

[Dictated to the stenographer, directly on the computer, typed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 3rd day of September 2022) (B. S. JAYASHREE) XXXIII ACC & SJ & SPL.JUDGE, (NDPS) : BENGALURU.