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TMI Blog2020 (6) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Advocate is accepted, then NCB s complaint and learned Special Judge s order taking cognizance will have to be declared illegal and such finding cannot be recorded in this proceedings under Section 439 of Cr.P.C in the absence of specific challenge. The petitioner s prayer for grant of default bail must fail and it is accordingly dismissed. - Criminal Petition No.8091/2019 - - - Dated:- 28-5-2020 - THE HON BLE MR. JUSTICE P.S. DINESH KUMAR PETITIONER: MR. HASHMATH PASHA, SENIOR COUNSEL AND MR. NASIR ALI, ADVOCATE RESPONDENT: MR. MADHUKAR M. DESHPANDE, CGSC ORDER This petition seeking bail under Section 439 of Cr.P.C. is presented by accused No.2 in Special CC No.1197/2019 pending on the file of Special Judge for NDPS cases (XXXIII Addl. City Civil and Sessions Judge), Bengaluru. 2. The point involved in this case is, whether prayer for grant of bail under Section 167(2) of Cr.P.C. can be considered after the learned Trial Judge takes cognizance of offences alleged in the complaint filed under Section 36A of Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act for short). 3. Heard Mr.Hashmath Pasha, learned Senior Advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing the petition, made following submissions: that NCB has filed the complaint on 25th October 2019 within the statutory period of 180 days; that the learned Special Judge has taken cognizance of the offences on 31st October 2019 and issued process. The complaint has been registered as CC No.1197/2019 on 2nd November 2019. Petitioner has not challenged learned Special Judge s order taking cognizance of the offences. Therefore, the prayer for grant of bail under Section 167(2) of Cr.P.C. is not maintainable; that the averments contained in paragraphs No.114 to 117 only indicate that NCB is making efforts to arrest accused No.4 who is absconding and to investigate his involvement. 9. I have carefully considered rival contention and perused the records. 10. Undisputed facts of the case are, petitioner was arrested on 3rd May 2019 and NCB has filed its complaint dated 25th October 2019. The record of proceedings of the Special Court disclose that the learned Special Judge has taken cognizance of offences on 31st October 2019 and issued process. Thereafter, this petition has been filed on 22nd November 2019. In paragraph No.20 of the petition, it is averred that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 22, 23, 25, 27A, 27B, 29 32B(a) of the NDPS Act, 1985 in connivance of his associates in his crime. 13. So far as the contention of the learned Senior Advocate with regard to averments contained in paragraph No.114 of NCB s complaint is concerned, it is to be noted that what is stated therein is, investigation is pending on several points and more persons are likely to be apprehended. Mr.Deshpande s submission on this paragraph that accused No.4 is absconding and he is likely to be apprehended, cannot be brushed aside. Suffice to record that so far as petitioner is concerned, NCB has summed up its case in paragraph No.104 and leveled allegations of contravention of various provisions of the NDPS Act. 14. Mr. Hashmath Pasha, relying on paragraph No. 116 in Directorate of Enforcement Vs. Deepak Mahajan and another, (1994) 3 SCC 440 argued that a Police Officer is required to file a Report under Section 173 of the Code of Criminal Procedure after consummation of investigation and similarly, an authorized Officer is required to file complaint of facts under Special Acts like NDPS Act only after consummation of facts. Since investigation is not complete in the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n expiry of 60 days, Dalmia filed an application seeking statutory bail under Section 167(2) of Cr.P.C. The learned Magistrate rejected the application. On challenge, learned Sessions Judge allowed the application. CBI moved the High Court against the order passed by the learned Sessions Judge. The High Court set-aside the order passed by the learned Sessions Judge. In the result, Dalmia s application for default bail, failed. In such circumstances, he was before the Apex Court contending inter alia that the charge sheet filed against him and cognizance taken were illegal; and even if charge-sheet were legal, appellant s right under Section 167(2) of Cr.P.C. continued to remain on the facts of the case. 20. The Apex Court, after considering various judgments including Sanjay Dutt Vs. State (1994) 5 SCC 410 has held in Dinesh Dalmia s case as follows: 38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material produced in the court with the challan. He further submitted that it should be clarified that the direction to grant bail under this provision on this ground alone in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT(1994) 4 SC 255] after the challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] is being construed by the Designated Courts to meanthat the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed. Bail is being claimed by every accused under the TADA Act for this reason alone in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench. 48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2].) 49. This is the nature and extent of the right of the accused to be released on bail under Section 20(4)(bb) of the TADA Act read with Section 167 CrPC in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] , accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribe to that view. (Emphasis supplied) 22. Thus it is settled that once a challan is filed, an application under Section 167(2) of Cr.P.C. for grant of bail does not survive for consideration or remain enforceable. 23. Though Mr.Hashmath Pasha, strenuously contended that NCB s complaint having been filed without completing investigation, is a defective one, it cannot be gainsaid that the learned Special Judge has already taken cognizance of the offence and trial is in progress. There is no challenge to the validity of compliant nor the order of taking cognizance. Mr.Hashmath Pasha has relied only on Paragraph No.114 of the complaint and one line in the statement of objections filed by the NCB to buttress his point that investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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