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TMI Blog2018 (3) TMI 1886X X X X Extracts X X X X X X X X Extracts X X X X ..... of the concurring judgment in RAKESH KUMAR PAUL VERSUS STATE OF ASSAM [ 2017 (8) TMI 1526 - SUPREME COURT ] categorically spell out that the right to get default bail is a very important right and that ours is a country where millions of our countrymen are totally illiterate and are not aware of their rights and that the accused can be detained in custody so long as he does not furnish bail and that the accused is not required to file a detailed application and all he has to aver in the application is that since 60 or 90 days had expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail and that this indefeasible right cannot be defeated by filing the charge-sheet after the accused has offered to furnish bail and did not have any grounds for grant of bail. It is essential to observe that the petitioner though he filed an application under Section 439 of the Criminal Procedure Code, 1973 and stated inter alia that he had been falsely implicated nevertheless stated that he was in judicial custody since 06.03.2017 and was willing to join the investigation and was willing to produce sound surety as directed by the Court. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory period of 60 days from the date of arrest, which expired on 04.08.2017. The petitioner submits that he had filed the application seeking release of bail on 19.09.2017 before the learned Trial Court under Section 439 of the Criminal Procedure Code, 1973 which was fixed for 26.09.2017. 2. Vide paragraph 4 of the application under Section 439 of the Criminal Procedure Code, 1973 dated 19.09.2017, the applicant submitted that he had been arrested by the police of the Crime Branch on 03.06.2017 and had been sent to judicial custody and that he was willing to join investigation as and when called by the Investigating Officer and that nothing had been recovered from his possession and, if any, the same was planted by the police and that he had not committed any offence which is punishable under the law and that he had clean antecedents and he was not a previous convict and that he has deep roots in the society and that there was no likelihood of his fleeing away from the Court of justice and that he is willing to join investigation as and when directed by the Court and that he undertakes to furnish the sound and reliable surety for the satisfaction of the Court and he is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where .; 6. It was also contended thus on behalf of the petitioner that as in terms of Clause-21(b) of the NDPS Act, 1985, the possession of the narcotic manufactured drug involved a quantity lesser than the commercial quantity but greater than the smaller quantity‟ he could be imprisoned for a term which may extend upto 10 years and with a fine of ₹ 1 lakh and that thus the applicant in terms of the Section 167(2) proviso (a)(ii) of the Criminal Procedure Code, 1973 had essentially to be released on statutory default bail . 7. On behalf of the State, the application is vehemently opposed submitting initially inter alia to effect that the applicant was in possession of 250 gms. of a narcotic manufactured drug, which fell within the ambit of commercial quantity and thus the offence was punishable beyond a period of 10 years apart from imposition of fine. 8. At the outset, it is essential to observe that vide order dated 22.09.2017 the learned Trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Thus the maximum imprisonment that can be imposed if the petitioner is found guilty in the instant case is a terms of rigorous imprisonment which may extend to 10 years and to a fine which may extend to ₹ 1 lakh. 11. In terms of Section 167(2) proviso (a)(i) and Section 167(2) proviso (a)(ii) of the Criminal Procedure Code, 1973 which read as under : - 167. Procedure when investigation cannot be complete in twenty-four hours - (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 or 90 days as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of the default by the Investigating Agency in completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate and that if the charge-sheet has not been filed and the right of default bail has ripened into the status of an indefeasible right, it cannot be frustrated by the prosecution on any pretext and the accused can avail his liberty by filing an application stating the statutory period for filing the charge-sheet or challan had expired and the same had not yet been filed and, therefore, the indefeasible right had accrued in his favour and further that the accused was prepared to furnish the bail bond. Paragraph 53 (2) (b) of the conclusion of the verdict of the Hon ble Apex Court in Sanjay Dutt s case was also adverted to as under : - (2)(b) The indefeasible right of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused i.e. the petitioner herein the applicant sought grant of bail on merits and not on the grounds of default bail for non submission of the charge-sheet within a period of 60 days from the arrest of the petitioner and thus the application filed on 19.09.2017 was rightly rejected vide order dated 22.09.2017 vide by ASJ-02, (East), Special Judge (NDPS), Karkardooma Courts, Delhi. Reliance was thus specifically placed on behalf of the petitioner on Rakesh Kumar Paul Vs. State of Assam (supra) on similar facts with specific reference to paragraphs 40, 44 and 46 of the verdict. It is essential to reproduce paragraphs 40 to 47 49 of the verdict authored by HMJ Madan B. Lokur in this case which are as under : - 40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for default bail ‟ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court he made no specific application for grant of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an the petitioners sent a telegram to a learned judge of this Court complaining of solitary confinement of prisoners. The telegram was treated as a habeas corpus petition and the concerned persons were directed to be released from solitary confinement. In Paramjit Kaur (Mrs.) v. State of Punjab a telegram received at the residential office of a learned judge of this Court alleging an incident of kidnapping by the police was treated as a habeas corpus petition. In Bandhua Mukti Morcha v. Union of India a petition addressed to a learned judge of this Court relating to the inhumane and intolerable conditions of stone quarry workers in many States and how many of them were bonded labour was treated as a writ petition on the view that the Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straight-jacket formula . In People‟s Union for Democratic Rights v. Union of India a letter addressed to a learned Judge of this Court concerning violation of various labour laws in the construction projects connected to the Asian Games was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Maharashtra this Court relied on Khatri and held that in paragraph 474 of the Report as follows: it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings. 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to default bail , to at least apprise him or her of the indefeasible right. A contrary v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had availed of his right to default bail ‟ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce. 47. Consequently, we are of opinion that the petitioner had satisfied all the requirements of obtaining default bail ‟ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail. 15. The concurring verdict of HMJ Deepak Gupta in this case also lays down to the effect : - 106(23) The second issue which arises is whether the petitioner had applied for default bail or not. Admittedly, there is no such plea in the bail application, but it is also not disputed that this was the main argument at the time of hearing and this issue was specifically dealt with in the impugned order. In my opinion, once the High Court permitted the counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22.09.2017 observing to the effect that the accused had not exercised his right for grant of statutory bail prior to the filing of the charge-sheet and had filed the same after filing of the charge-sheet and after cognizance was taken by the Court. It is essential to observe that as laid down in Rakesh Kumar Paul Vs. State of Assam (supra) and as categorically observed vide paragraph 43 thereof to the effect that in matters concerning personal liberty and penal statutes it is the obligation of the Court to inform the accused that he or she is entitled to free legal assistance as a matter of right and adapting the principle laid in Mohammed Ajmal Mohammed Amir Kasab Vs. State of Maharashtra (1983) 2 SCC 308 and in Khatri Vs. State of Bihar (1981) 1 SCC 627 vide paragraph 44 thereof to the verdict in Rakesh Kumar Paul Vs. State of Assam (supra), it was observed to the effect that just as it is obligation of the Court to inform the accused that he or she is entitled to free legal assistance as a matter of right, this principle adapted would make it equally the duty and responsibility of a Court on coming to know that the accused person before it is entitled to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediately filed charge-sheet u/s 173 of the Code of Criminal Procedure, 1973 on 20.09.2017 so that the indefeasible right to the bail of the petitioner gets defeated. It is submitted that on about 21.09.2017, the petitioner supplemented the application of bail dated 19.09.2017 and the learned Trial Court decided the bail application vide its order dated 22.09.2017. Bail application dated 19.09.2017 and submission made on 21.09.2017 are annexed hereto and marked as Annexure-2 (Colly). 20. It is thus apparent that the contents of the application dated 19.09.2017 had essentially to be considered by the learned Trial Court and the aspect of the charge-sheet having not been filed till the said date which on completion of 60 days from the date of the arrest of the petitioner / the accused on 03.06.2017 had to be filed by 04.08.2017 ought not to have overlooked. The period of incarceration of the petitioner from the date 19.09.2017 when he sought the grant of bail implicitly also on the ground that he was arrested on 03.06.2017 and was willing to continue to join the investigation, indicating thereby that the investigation was not complete and did not set completed till submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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