In C.R.M.146 of 2021-CAL HC- Right of accused to statutory bail upon expiry of period of detention u/s 36A(4) of NDPS Act is inchoate one till he avails of his right by seeking such bail & he cannot be released automatically on mere expiry of 180 days: Calcutta HC 
Justices Joymalya Bagchi, Suvra Ghosh & Krishna Rao [17-01-2023]

Read Order: SUBHAS YADAV AND ORS V. THE STATE OF WEST BENGAL

Mansimran Kaur

Jalpaiguri, January 24, 2023:  If an accused fails to apply for statutory bail,  his right does not crystallize and the Court is empowered to remand him to custody under section 167(2) Cr.P.C. r/w section 36A(4) of NDPS Act beyond 180 days till he avails of such right, the Jalpaiguri Bench of the Calcutta High Court has observed.

While dealing with the instant reference made with respect to the issue as to whether an accused upon expiry of period of detention pending investigation as prescribed under Section 36A(4) of the NDPS Act is to be released automatically on statutory bail without a prayer made by him availing such right and expressing his willingness to furnish bail, the  Larger Bench of Justice Joymalya Bagchi, Justice Suvra Ghosh and Justice Krishna Rao held  that mere expiry of 180 days and/or failure of the prosecuting agency to seek extension of the period of detention prior to the expiry of the said period does not crystallize the right to statutory bail. 

The Bench answered the reference by observing that the failure of the Court to inform the accused of such right cannot by itself lead to the irresistible conclusion that such breach had prevented the accused from availing such right.

The Court dealt with the issue as to whether an accused is automatically entitled to statutory bail on expiry of 180 days if prayer for extension is not made before the expiry of the said period. At this stage reference was placed on the judgment in Sanjay Dutt vs. State through C.B.I., Bombay (II).

In view of the same, the Court noted, “...mere expiry of 180 days and/or failure of the prosecuting agency to seek extension of the period of detention prior to the expiry of the said period does not crystallize the right to statutory bail. It remains an inchoate right which crystallizes when the accused avails of his right by making an application under section 167(2) Cr.P.C. read with section 36A(4) of the NDPS Act upon expiry of 180 days or any extended period, as the case may be”.  

Thus, the right to statutory bail crystallizes only when an accused has availed of his right by applying for statutory bail and has offered to furnish the bail, the Court further remarked. 

Further reliance was placed on the judgment in Bikramjit Singh vs. State of Punjab. In pursuance of the same, the Court noted, “...right to statutory bail is said to have been ‘availed of’ once an accused has applied for statutory bail and offered to furnish bail. It is immaterial whether such application is in writing or made orally before the Court.”

However,  if an accused fails to apply for statutory bail,  his right does not crystallize and the Court is empowered to remand him to custody under section 167(2) Cr.P.C. read with section 36A(4) of NDPS Act beyond 180 days till he avails of such righ, the Bench added..

Once the report of the public prosecutor is filed seeking extension of the period of detention under the proviso to section 36A (4) of NDPS Act prior to the accused having availed his right to statutory bail, the Court is vested with the jurisdiction to extend the period of detention for such period as it may deem fit and proper but not beyond one year in the whole, the Court noted. 

 In such cases the period of remand of an accused comprises three distinct stages. First is the remand of the accused pending investigation upto 180 days under the principle clause of section 36A(4) of the Act. 

Second is the intervening stage i.e. between expiry of 180 days and the date when the accused avails his right to statutory bail.  Third is the continued detention of the accused pursuant to an order passed by the Special Court under the proviso to section 36A(4) of the Act. The sum of all the periods cannot exceed one year in the whole, the Bench noed.

“Right to avail statutory bail is a conscious decision of an accused in consultation with his counsel. Failure of the Court to inform the accused of such right cannot by itself lead to the irresistible conclusion that such breach had prevented the accused from availing such right”, the Bench said.

Reference was made to the judgments in Union Public Service Commission vs. S. Papaiah And Others, Bhagwant Singh vs. Commissioner of Police And Another, Rambeer Shokeen vs. State (NCT OF DELHI) .

 Hence, the Court was of the considered view that it was unable to accept  the contention that the  failure of the Court to inform an accused of his right to statutory bail would automatically entitle him to statutory bail even when he has not availed of such right. 

Noting that the issue whether the accused must be served with a written notice and copy of the application for extension of period of detention is no longer res integra,  the Court concluded the matter by observing that though a written notice and copy of the report of the public prosecutor may not be supplied to the accused, the latter is required to be produced physically or through video linkage when the prayer for extension is considered.