Right to seek default bail got extinguished when chargesheet was filed by investigating agency on 181^st day of custody in pre-lunch session: Delhi HC denies bail to NDPS Act accused
Justice Amit Mahajan [20-05-2024]

Read Order: VISHAL @ GOLU v. STATE NCT OF DELHI [DEL HC-CRL.REV.P. 1176/2023]

Tulip Kanth

New Delhi, June 10, 2024: The Delhi High Court has upheld the order of the Trial Court dismissing the default bail plea of an accused under the NDPS Act after noting that the right to seek default bail of the Petitioner accrued on 181^st day of the custody on ground of non-filing of chargesheet. However, the same was extinguished the moment the chargesheet was filed by the investigating agency on the 181^st day of the custody in the pre-lunch session. 

The Single-Judge Bench of Justice Amit Mahajan also considered the fact that the application for default bail was sent on official email ID of the court of Duty Metropolitan Magistrate on the same day in the post-lunch session but after filing of the chargesheet.

The Anti-Narcotic Squad, in this case, had received secret information regarding possession and supply of contraband by the petitioner/accused along with co-accused Sameer Beg. On the basis of the said information, the police officials apprehended both of them for violation of several provisions of the NDPS Act. In the search, contraband smack/heroin in proportion of 260 grams and 86 grams was recovered from the petitioner and co-accused Sameer Beg. FIR was thereafter registered under Sections 21/29/61 of the NDPS Act.

Consequently, the accused persons were arrested on 12.03.2023 and remanded to custody on the same day. The custody of the petitioner was extended from time to time. As per the custody warrants, the petitioner was remanded to judicial custody on 23.08.2023 for a period of 14 days i.e. till 06.09.2023. The remand was further extended till 13.09.2023 by the Duty Metropolitan Magistrate, South East, Saket. The petitioner had filed an application under Section 167(2) of the CrPC read with Section 36A (4) of the NDPS Act before the Trial Court seeking grant of default bail on the ground of default in completion of the investigation within the statutory period of 180 days, through email on 08.09.2023 in the post lunch session was dismissed. Aggrieved thereby, the petitioner approached the Delhi High Court.

The Bench made it clear that the statutory period for completion of investigation as prescribed under Section 167(2) of the CrPC read with Section 36A (4) of the NDPS Act is 180 days. The main issue in this case was whether the petitioner is entitled to default bail in terms of Section 167(2) of the CrPC read with Section 36A (4) of the NDPS Act, on the ground of non-filing of chargesheet on 180th day of the custody.

Referring to Section 167(2) of the CrPC and Section 36A (4) of the NDPS Act, the Bench observed that when the maximum period prescribed therein for investigation is over and chargesheet is not filed, then the accused becomes entitled to be released on default ail. Placing reliance upon the judgments in Rakesh Kumar Paul v. State of Assam, Bikramjit Singh v. State of Punjab [LQ/SC/2020/715]; Uday Mohanlal Acharya v. State of Maharashtra [LQ/SC/2001/878], the Bench stated that the Supreme Court and High Courts have held that the right to default bail is not merely a statutory right, but also a fundamental right which flows from Article 21 of the Constitution of India.

It was further explained by the Bench that the indefeasible right to default bail accrued under Section 167(2) of the CrPC is enforceable only prior to the filing of the chargesheet and it does not remain enforceable upon filing of the chargesheet, if not availed already. Once the chargesheet is filed, the question of grant of bail is to be dealt with in accordance with the provisions relating to grant of regular bail. If the right to default bail has accrued due to non-filing of chargesheet, but has remained unenforced till the filing of the chargesheet, then there remains no question of enforcement of the said right thereafter. The entitlement of an accused to the grant of default bail extinguishes the moment chargesheet is filed.

In the case at hand, the investigating agency filed the chargesheet after the expiry of the statutory period prescribed for completion of investigation as contemplated under Section 167(2) read with Section 36A (4) of the NDPS Act. The chargesheet was filed on the 181st day of custody in the pre-lunch session on 08.09.2023. On the other hand, the application for default bail was admittedly filed through email on 08.09.2023 in the post-lunch session.

Reiterating that an indefeasible right to default bail accrues upon non-filing of chargesheet by the investigating agency within the statutory period of 60/90 or 180 as the case may be, the Bench said, “If the accused applies for the grant of default bail on expiry of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. However, if the chargesheet is filed on 181st day but before the filing of application for grant of default bail, then the accrued right to seek default bail extinguishes.”

The Bench concurred with the views of various High Courts that if the bail application is filed in the morning and the chargesheet is filed on the same day, albeit, later in the day, the right to seek default bail would extinguish. 

The Bench thus observed, “In the present case, the indefeasible right to default bail of the Petitioner accrued on 181st day of the custody on ground of non-filing of chargesheet. However, the said right extinguished the moment the chargesheet was filed by the investigating agency on 181st day of the custody in the pre-lunch session. The application for default bail was sent on official email ID of the court of learned Duty Metropolitan Magistrate, South East, Saket on the same day at 3:09 PM, that is, after filing of the chargesheet.”

Asserting that the petitioner had no right to seek default bail after filing of the chargesheet and the ASJ rightly rejected the application filed by the petitioner, the Bench dismissed the petition.