Mumbai Court Grants Default Bail to Briton Jonathan Thorn as DRI Fails to File Chargesheet on Time

Mumbai, Maharashtra — In a significant ruling emphasizing an accused’s “indefeasible right” to default bail, a Special Judge for NDPS Cases at Greater Mumbai has granted statutory bail to Jonathan Thorn, a 43-year-old British national. Thorn, identified as Accused No. 7 in an NDPS case, was released by His Honour Special Judge M. S. Mungale on February 1, 2019, primarily because the Directorate of Revenue Intelligence (DRI) failed to file a chargesheet within the stipulated 180-day period.

Thorn, a resident of Goa and currently lodged at Arthur Road Jail, Mumbai, had moved his application (NDPS Bail Application No. 910 of 2018) 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 argument was that the chargesheet/complaint had not been filed within 180 days from his arrest date of June 12, 2018.

Background: Extension of Time and High Court Intervention

The case, File No. DRI/MZU/C/INT-75/18, saw a previous attempt by the DRI to extend the investigation period. On December 7, 2018, the Special Court had initially granted the DRI an extension of time until December 21, 2018, for filing the chargesheet.

However, this extension order was challenged by co-accused Rahul Shedge (Accused No. 1) and Accused No. 4 in the Bombay High Court through Criminal Application Nos. 1448 of 2018 and 1459 of 2018, respectively. Advocate Shri. Fernandes and Shri Yadnyesh Kotkar represented Jonathan Thorn in the bail plea, while Smt. Anuradha Mane appeared as the Special Public Prosecutor for the respondents (Union of India/DRI).

Crucially, the Bombay High Court, in a common order dated January 24, 2019, allowed both Criminal Applications, setting aside the Special Court’s order of December 7, 2018, which had granted the 14-day extension for filing the chargesheet.

Arguments Presented: Default Bail vs. Prosecution’s Diligence

On behalf of Jonathan Thorn, it was argued that with the High Court setting aside the extension order, it must be presumed that no valid extension was granted beyond the 180-day period stipulated under Section 36-A of the NDPS Act. This, the defense contended, immediately conferred upon the accused an “indefeasible right” to statutory bail under Section 167(2) of the Cr.P.C. The defense relied on several Supreme Court and High Court judgments, including Dr. Bipin Shantilal Panchal Vs. State of Gujarat (1996), Union of India (UOI) Vs. Nirala Yadav (2014), and Rajubhai @ Jacob Mathew Pinto and another Vs. State of Maharashtra (2005).

The Special Public Prosecutor, Smt. Anuradha Mane, countered by asserting that the complaint was indeed filed on December 21, 2018, within the 14-day extended period granted by the Special Court’s original order of December 7, 2018. She argued that since the complaint was filed within the then-granted timeframe, there was no “negligence or default” on the DRI’s part, and thus the application for default bail was not maintainable. Mane also contended that the bar for granting bail under Section 37 of the NDPS Act should apply even to statutory bail and that the “indefeasible right” could only be exercised between the period of default and the actual filing of the chargesheet. She cited numerous judgments in support of her arguments.

Court’s Ruling: Upholding Indefeasible Right to Default Bail

Judge Mungale meticulously analyzed the arguments and the precedents.

Firstly, addressing the APP’s contention that Section 37 of the NDPS Act applied to statutory bail, the Judge unequivocally stated that “there is no substance in the submission.” He cited the Three-Judge Bench judgment of the Supreme Court in Dr. Bipin Shantilal Panchal’s case (1996), which explicitly held that Section 37 does not exclude the application of the proviso to Section 167(2) of the Cr.P.C. for NDPS accused.

Secondly, the Judge dismissed the prosecution’s argument that the complaint was filed within the valid extended period. He noted that the Bombay High Court’s order of January 24, 2019, had “set aside” the Special Court’s extension order. Therefore, it had to be presumed that the request for extension beyond 180 days was, in effect, rejected, placing the obligation on the DRI to file the chargesheet within the initial 180 days from the arrest.

The court further elaborated on the concept of “indefeasible right” to default bail, citing the Supreme Court’s pronouncements in Hitendra Vishnu Thakur, Sanjay Dutt, and Uday Mohanlal Acharya cases. The Judge reiterated that this right accrues and is enforceable from the time of default until the chargesheet is filed. Crucially, if an accused applies for bail before the chargesheet is filed, and the application is erroneously refused, the subsequent filing of a chargesheet while the matter is pending before a higher forum does not extinguish this indefeasible right.

Applying these principles, Judge Mungale observed that Jonathan Thorn was arrested on June 12, 2018, making the 180-day period expire on December 9, 2018. Thorn filed his bail application on December 11, 2018, before the complaint was filed by the DRI on December 21, 2018. The fact that the bail applications were not pressed for hearing until the High Court’s decision was deemed “bona fide” and not an attempt to deliberately delay proceedings.

Bail Conditions

Given that Thorn had availed his indefeasible right to statutory bail, the court allowed his application. He was ordered to be released on bail on the following conditions:

Personal Recognizance (P.R.) bond of ₹1,00,000/- and a surety of the like amount.
He is entitled to submit one or more sureties for compliance.
Monthly Reporting: Thorn must report 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.
Reporting Diary: He must maintain a diary about his reporting presence and produce it for examination by the Court on each adjourned date.
Travel Restriction: Thorn shall not leave India without prior permission from the Court.
Passport Submission: If he possesses a passport, he must produce it in the Court.
Identification Proof: Before release, he must submit his photograph and documentary proof of his residential address on record.
No Tampering: He shall not tamper with the prosecution evidence.

The court’s decision underscores the judiciary’s commitment to protecting the procedural rights of accused persons, particularly the fundamental right to default bail when investigating agencies fail to complete their investigations within the statutory time limits.