Mumbai, Maharashtra – Nguyen Man Cuong, a 38-year-old Vietnamese national and Accused No. 9 in a case filed by the Directorate of Revenue Intelligence (DRI), has been granted default bail by the Special Judge for NDPS Cases at Greater Mumbai, M.S. Mungale (C.R. No. 44). The order, issued on February 1, 2019, in NDPS Bail Application No. 913 of 2018, hinged on the prosecution’s failure to file the charge-sheet within the stipulated time as per Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) read with Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
Nguyen Man Cuong was arrested on June 13, 2018. Under the NDPS Act, the investigation agency typically has 180 days to file a charge-sheet. His counsel, Shri Ayaz Khan, argued that the charge-sheet was not filed within this mandatory period, thereby entitling him to statutory bail, commonly known as default bail.
Background of the Case
The DRI had sought an extension of time to file the charge-sheet, and on December 7, 2018, this Special Court had granted a 14-day extension, extending the deadline to December 21, 2018. Following this extension, the DRI filed the complaint on December 21, 2018.
However, Accused No. 1 (Rahul Shedge) and Accused No. 4 in the same case had challenged this extension order before the Hon’ble Bombay High Court (Criminal Application No. 1448 of 2018 and Criminal Application No. 1459 of 2018, respectively). The Hon’ble High Court, in a common order dated January 24, 2019, set aside the Special Court’s order of December 7, 2018, which had granted the 14-day extension for filing the charge-sheet.
Key Arguments and Court’s Analysis
Defense Argument: Shri Ayaz Khan contended that since the High Court had set aside the extension order, it effectively meant that the initial request for extension beyond 180 days was rejected. Consequently, the DRI was obligated to file the charge-sheet on or before the expiry of the original 180-day period (which would have ended on December 10, 2018, for Nguyen Man Cuong). As the charge-sheet was filed on December 21, 2018, after the 180-day period and after the High Court quashed the extension, Nguyen Man Cuong acquired an “indefeasible right” to default bail. He cited Supreme Court judgments like Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) and Union of India v. Nirala Yadav (2014), along with a Bombay High Court judgment, to support this established legal principle.
Prosecution’s Opposition: Smt. Anuradha Mane, the learned Special Public Prosecutor for DRI, argued that the charge-sheet was filed on December 21, 2018, as per the then-valid order of the Special Court. She contended there was no default on DRI’s part. She also argued that the bar for bail under Section 37 of the NDPS Act (which imposes strict conditions for bail in serious drug offenses) should also apply to statutory bail under Section 167(2) Cr.P.C., and on merits, a strong case had been made against the accused. She cited several judgments to support her arguments, including Sanjay Dutt v. State Through CBI (1994).
Court’s Ruling on Legal Principles
Special Judge Mungale addressed both of the Special Public Prosecutor’s main contentions:
- Applicability of Section 37 NDPS Act to Default Bail: The court explicitly rejected the argument that Section 37 of the NDPS Act applies to statutory bail under Section 167(2) Cr.P.C. Citing the Supreme Court’s Three-Judge Bench judgment in Dr. Bipin Shantilal Panchal (1996), the court reaffirmed that “Section 37 does not exclude the application of the proviso to sub-section (2) of Section 167 of the Code, even in respect of persons who are accused for offences under Narcotic Drugs And Psychotropic Substances Act.” This re-emphasizes that the right to default bail is a distinct statutory right.
- Indefeasible Right of Default Bail: The court further clarified the principle of “indefeasible right.” It noted that while this right is typically exercisable from the time of default until the charge-sheet is filed, if an accused applies for bail during this period, and the application is legitimately pending (e.g., due to a bona fide reason like awaiting a higher court’s decision), the right is not extinguished merely because the charge-sheet is filed in the interim. The court stated that the accused and the prosecution had a “bona fide” reason not to press the bail applications for hearing until the Bombay High Court’s order was pronounced on January 24, 2019.Since the High Court’s order dated January 24, 2019, retroactively nullified the extension granted by the Special Court, it effectively meant that the DRI had failed to file the charge-sheet within the 180-day period (which expired on December 10, 2018). Nguyen Man Cuong had filed his bail application on December 11, 2018, before the charge-sheet was filed on December 21, 2018.
Conclusion and Bail Conditions
Based on these legal interpretations, the court concluded that Nguyen Man Cuong had acquired an indefeasible right to statutory bail.
The court allowed Bail Application No. 913 of 2018, ordering the release of Nguyen Man Cuong on:
- Executing a Personal Recognizance (P.R.) bond of Rs. 1,00,000/- (Rupees One Lakh).
- Furnishing a surety of the like amount. He is allowed to submit one or more sureties to meet this amount.
The bail is subject to the following conditions:
- Reporting: The applicant must report to the Intelligence Officer (DRI) on the last Monday of each month between 11:00 a.m. to 2:00 p.m. until the final disposal of the case.
- Reporting Diary: He must maintain a diary of his reporting presence and produce it for examination by the Court on each adjourned date.
- Travel Restriction: He shall not leave India without prior permission of the Court.
- Passport: If he possesses a Passport, he must produce it in the Court.
- Address 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 application stands disposed of accordingly.