Kartika Bagh @ Phampudu vs State Of Odisha

B. P. Routray, J

The Petitioner has prayed for his release on bail under Section 36-A(4) of the N.D.P.S. Act read with Section 167 (2) of the Cr.P.C.

The Petitioner has been arrested and taken to custody on 8.8.2018 in connection with Jeypore Sadar P.S. Case No.86 dated 1.6.2018 for

commission of offences under Sections 20(b)(ii)(C)/25/29 of the N.D.P.S.Act relating to transportation and seizure of contraband ganja weighing 149

Kg. from the co-accused persons. The investigation continued and on 27.11.2018, the I.O. made a prayer for extension of time beyond 180 days to

complete the investigation in terms of the proviso contained in Section 36-A(4) of the N.D.P.S. Act. The prayer for time was allowed and ultimately

chargsheet was filed on 14.12.2018 for the offences aforestated against the Petitioner as well as other co-accused persons.

In respect of other co-accused persons, who were arrested on 2.6.2018, 180 days period of custody was completed on 28.11.2018 i.e., before

submission of the chargsheet, but in respect of the present Petitioner, his period of custody of 180 days was not completed.

In respect of other accused persons since the chargsheet was not filed upon completion of 180 days of their custody and the extension of time was

granted without giving an opportunity of hearing to them, on their prayer, they were released on default bail basing on the principles decided in the

case of Lambodar Bag Vrs. State of Orissa, reported in (2018) 71 OCR-31 and other cases.

It is now contended by the Petitioner that, since he was also inside custody on 27.11.2018 when the extension of time was allowed to submit the

chargsheet without giving him an opportunity of being heard, he should also be released on default bail on the same principle as the other co-accused

persons have been benefitted.

Learned counsel for the State opposes the prayer of the Petitioner by submitting that it is well settled in law that, the period of custody of the

accused is only relevant for granting the benefits of default bail under Section 167(2) of the Cr.P.C. Since the Petitioner has not completed 180 days

by 27.11.2018, he cannot avail the benefit.

Looking to the language contended in Section 36-A(4) of the N.D.P.S. Act and Section 167 (2) of the Cr.P.C., it becomes clear that the period of

custody of the accused is the relevant consideration for extending the benefit of default bail. Admittedly, the Petitioner was arrested on

8.2018 and the chargsheet was filed on 17.12.2018 i.e., much before completion of 180 days of his custody. Therefore, no right accrues in favour of

the present Petitioner to release him on bail under Section 167(2) of the Cr.P.C.

So far as the contention of the Petitioner that before granting extension of time to the I.O. on 27.11.2018, he should have been given an opportunity

of hearing and by not doing so, his right has been violated, it is to be mentioned that prayer for extension of time by the I.O. cannot be considered in

respect of the present Petitioner, who has not completed his period of custody as per the statutory requirement under Section 36-A(4) of the N.D.P.S.

Act read with Section 167 (2) of the Cr.P.C. Therefore, giving any opportunity of hearing to the Petitioner does not arise and as such, the contention

raised on behalf of the Petitioner is without merit.

Accordingly, the CRLMC, being devoid of merit, is dismissed.

Copy of this order be uploaded in the High Court’s official website as per Court’s Notice No.4798, dated 15th April, 2021.

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