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TMI Blog2020 (11) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... combined complaint dated 06.07.2018 was submitted by Intelligence Officer, D.R.I., Bangalore before the Special Court, Omerga. Complaint under Section 36A(1)(d) of NDPS Act for offences under Section 8(c) punishable under Section 21(c), 22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act has been filed dated 06.07.2018 by Intelligence Officer, D.R.I. in Omerga Court. It is true that two offences, one at Hyderabad being at the instance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registered and another case Special NDPS No. 17 of 2018 by the D.R.I., Bangalore, Zonal Unit. A combined complaint taking care of both the offences was filed before the Special Court, Omerga as noted above wherein offences committed by the accused were also inquired and dealt with. There is ample material in the complaint that the transportation of narcotic substance started from Omerga, Maharashtra and was being allegedly to be taken to Chennai and intercepted at Hyderabad. The complaint, which has been brought on the record gives the detailed facts including the journey and the interception of appellants at Hyderabad. The combined complaint having been filed on 06.07.2018, i.e., well wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appellants opened the packet and tested the materials in the packet. The appellants were taken to the office of D.R.I., Hyderabad. The total quantity of packets (Methaqualone) weighed to be 45.874 Kgs. 2.2 On 12.01.2018, the appellants were arrested in exercise of power conferred under Section 42 of NDPS Act, 1985 (hereinafter referred to as Act, 1985 ). The D.R.I. officers prepared a crime report against all the accused-appellants for commission of offence under Sections 22, 28 and 29 of NDPS Act and produced them before the VI Additional CMM, Hyderabad. The duty Magistrate on 12.01.2018 allowed the application for remand and the appellants were remanded till 25.01.2018. On 25.01.2018, the appellants-accused persons were produced before the Special Sessions Judge Court, D.R.I., Hyderabad. Remand of the appellants was extended from time to time. On 10.07.2018 the appellants were remanded only for two days since 180 days prescribed for filing charge sheet were coming to an end on 12.07.2018. 2.3 On 12.07.2018, since 180 days had expired, the appellants filed bail application. Learned Special Sessions Judge, Hyderabad granted bail to the appellants under Section 167(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int under Section 36A(d) of NDPS Act having been filed by 12.07.2018 by which period, 180 days had lapsed, the learned Special Court had granted default bail on 12.07.2018 to all the appellants. The accused were entitled for default bail under Section 167(2) Cr.P.C. Learned Senior counsel submits that instead of filing an application for cancellation of the bail before the Special Court under Section 439(2) Cr.P.C., the respondent approached before the High Court under Section 439(2) Cr.P.C. When the bail order was passed by the Special Court, D.R.I., Bangalore ought to have informed the Special Court seeking the cancellation of the bail by giving explanation as to why the fact of filing combined complaint was not informed to the Special Court. It is submitted that recovery of contraband from accused by the D.R.I. Hyderabad is entirely different from the Omerga case, which is relating to the recovery of the contraband manufactured at the factory situated at Omerga. The appellants are to be charged only for the offence of possession and the transport. The appellants have no role to play with reference to the manufacture of contraband in the factory at Omerga. The seizure of the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, the appellants were not entitled for grant of default bail under Section 167(2) Cr.P.C. 7. We have considered the submissions of the learned counsel for the parties and have perused the records. 8. The appellants car by which they were travelling from Omerga to Hyderabad on 11.01.2018 was intercepted by the D.R.I. officials of Hyderabad Zonal Unit near the Kamkole near Hyderabad and from the possession of the appellants 45.874 Kgs of narcotic substance was recovered. Appellants in the statement recorded under Section 67 of NDPS Act have stated that they have started from Omerga to Chennai in the car in which the narcotic substance was being transported. The remand of the appellants was extended from time to time till 12.07.2018 by Special Court, Hyderabad. On 11.01.2018, recovery of narcotic substance was also made at Omerga in the factory premises of M/s Pragati Electrical Work, MIDC Omerga, Maharashtra, on which D.R.I. has registered a case and a combined complaint dated 06.07.2018 was submitted by Intelligence Officer, D.R.I., Bangalore before the Special Court, Omerga. Complaint under Section 36A(1)(d) of NDPS Act for offences under Section 8(c) punishable under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge sheet on 06.07.2018 before the Additional Sessions Court, Omerga, was not brought to the notice of the Metropolitan Sessions Court, Hyderabad for whatever reason may be. Since the factual aspect remains that the charge sheet was filed on 06.07.2018 i.e., well within the stipulated period of 180 days, the respondents-accused are not entitled for the benefit under Section 167(2) Cr.P.C. Under these circumstances, the respondents-accused are entitled for bail in accordance with the provisions laid down under the NDPS Act read with Sections 437 and 439 Cr.P.C. and accordingly they are entitled to work out the remedies under the said provisions. 10. It is true that the bail granted under Section 167(2) Cr.P.c. could have been cancelled under Section 439(2) Cr.P.C.. This Court in Pandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC 745 while considering the case where bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned Sessions Judge after noticing the facts upheld the order under Section 439 Cr.P.C. cancelling the bail. Paragraphs 7, 8 and 9 of the judgment are as follows:- 7. In the present case, against the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has misconducted himself or because of some new facts requiring such cancellation. 11. It is not even submitted before us that Omerga Court where common complaint has been filed against the accused had no jurisdiction to inquire and try the offence. It was due to some miscommunication that at the time when Court passed the order on 12.07.2018, the factum of filing of combined complaint dated 06.07.2018 was not brought into the notice of Special Court, Hyderabad. Although, letter of the same date 12.07.2018 was received by Special Court, Hyderabad from Special Court, Omerga praying for custody of the appellants, which custody was also granted by the Special Court, Hyderabad on the next day, i.e., 13.07.2018. All these facts were brought before the High Court in application filed under Section 439(2) Cr.P.C. and the High Court has rightly cancelled the bail order dated 12.07.2018. We do not find any error in the order of the High Court cancelling the bail order dated 12.07.2018. 12. It is true that two offences, one at Hyderabad being at the instance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registered and another case Special NDPS No. 17 of 2018 by the D.R.I., Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X
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