A Special Judge for NDPS cases in Greater Mumbai granted default bail to Nguyen Man Cuong, a Vietnamese national, in NDPS Bail Application No. 913 of 2018. The decision, delivered by His Honour Special Judge M. S. Mungale (C.R. No. 44) on February 1, 2019, hinged on the prosecution’s failure to file a charge-sheet within the stipulated 180-day period.
Background of the Case
Nguyen Man Cuong, identified as Accused No. 9, was arrested on June 13, 2018. He filed for default bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) read with Section 36-A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. His application argued that the Directorate of Revenue Intelligence (DRI), Mumbai, failed to file the charge-sheet or complaint within 180 days of his arrest.
The court had previously granted the prosecution an extension until December 21, 2018, to file the charge-sheet, following an application by the DRI on December 7, 2018. However, this extension order was challenged by other co-accused (Accused No. 1 and Accused No. 4) in the Bombay High Court through Criminal Application Nos. 1448 of 2018 and 1459 of 2018.
High Court’s Intervention
On January 24, 2019, the Bombay High Court set aside the lower court’s order of December 7, 2018, which had granted the 14-day extension for filing the charge-sheet. This decision by the High Court proved crucial to Cuong’s bail application.
Arguments Presented
The Applicant’s Counsel, Shri. Ayaz Khan, contended that with the High Court setting aside the extension order, it should be presumed that no extension beyond 180 days was ever granted. Therefore, the applicant had an indefeasible right to statutory bail as per Section 167(2) of the Cr.P.C. He cited several Supreme Court and Bombay High Court judgments to support his arguments, including Dr. Bipin Shantilal Panchal vs. State of Gujarat, Union of India (UOI) vs. Nirala Yadav, and Rajubhai @ Jacob Mathew Pinto and another vs. State of Maharashtra.
The Special Public Prosecutor, Smt. Anuradha Mane, representing the DRI, argued that the complaint was indeed filed on December 21, 2018, within the extended time frame initially granted by the Special Court. She asserted that the application for default bail was therefore not maintainable. Ms. Mane also contended that the bar on granting bail under Section 37 of the NDPS Act should apply even to statutory bail applications. She relied on judgments from various High Courts and the Supreme Court to support her stance, including Harendra Alias Hari Singh vs. State of Rajasthan, Sajjan Singh vs. State of Haryana, Mustaq Ahmed Mohammed Isak and others vs. State of Maharashtra, and Sanjay Dutt vs. State Through C.B.I..
Court’s Ruling and Rationale
Special Judge Mungale addressed both key contentions raised by the prosecution.
Applicability of Section 37 of NDPS Act to Statutory Bail: The court dismissed the prosecution’s argument that Section 37 of the NDPS Act bars the grant of statutory bail. Relying on the three-judge bench judgment in Dr. Bipin Shantilal Panchal’s case (1996), the court affirmed that Section 37 does not exclude the application of the proviso to sub-section (2) of Section 167 of the Code, even for offenses under the NDPS Act.
Timeliness of Charge-sheet Filing and Indefeasible Right to Bail: The court acknowledged that the charge-sheet was filed on December 21, 2018. However, it emphasized that the Bombay High Court, by its order of January 24, 2019, had set aside the extension order. This meant that the original 180-day period, which expired on December 10, 2018 (as Cuong was arrested on June 13, 2018), was the valid deadline for filing the charge-sheet. Since Cuong filed his bail application on December 11, 2018, before the charge-sheet was filed and while his right to default bail had accrued, his indefeasible right remained intact.
The court cited Union of India vs. Nirala Yadav (2014) and Uday Mohanlal Acharya vs. State of Maharashtra (2001) to reinforce the principle that an indefeasible right to statutory bail, once accrued and applied for, is not extinguished by the subsequent filing of a charge-sheet, especially if the delay was due to an erroneously refused application or a pending challenge in a higher forum. The court noted that the bail applications were not pressed for hearing until the High Court’s order was pronounced, which was a “bona fide” action.
Bail Conditions
Based on these findings, the court allowed Nguyen Man Cuong’s bail application. He was ordered to be released on bail upon:
- Executing a personal recognizance bond of Rs. 1,00,000/- and a surety of the like amount.
- Being entitled to submit one or more sureties.
- Reporting to the Intelligence Officer on the last Monday of each month between 11:00 a.m. and 2:00 p.m. until the final disposal of the case.
- Maintaining a diary of his reporting presence and producing it for court examination on each adjourned date.
- Not leaving India without prior court permission.
- Producing his passport in court if he possesses one.
- Submitting his photograph and documentary proof of his residential address before release.
- Not tampering with prosecution evidence.
The bail application stands disposed of accordingly.