Page No.# 1/9 GAHC010025322025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./340/2025 MABRUR AHMED CHOUDHURY SON OF- LATE SHAFIQUL HAQUE CHOUDHURY, RESIDDENT OF VILLAGE SUPRAKANDI, PS AND DIST KARIMGANJ, ASSAM 788710 VERSUS THE STATE OF ASSAM REP. BY PP ASSAM Advocate for the Petitioner : MR. A K DAS, MR. B CHOWDHURY,MS A BORAH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.03.2025 1. Heard Mr. B. Chowdhury, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Mabrur Ahmed Choudhury, who has been detained behind the bars since 19.07.2024, in connection with Karimganj Police Station Case No. 462/2024, under Sections 22(c)/25/29 of the NDPS Act, 1985, corresponding to Special (NDPS) Case No. 81/2024 pending before the Court of the learned Page No.# 2/9 Special Judge, Sribhumi. 3. The gist of accusation in this case is that on 19.07.2024, one M. Nganthoiba had lodged an FIR, before the Officer-in-charge of Karimganj Police Station, inter alia, alleging that, on receipt of an information through reliable sources, regarding concealing of large quantity of narcotic drugs by the present petitioner in one Hero Glamour Vehicle bearing Registration No. AS-10A-6892, a police team was constituted and a search operation was conducted. During search operation, 6600 numbers of Yaba tablet, containing methamphetamine weighing about 766 gram in total were recovered from the possession of the present petitioner. 4. The learned counsel for the petitioner has submitted that the petitioner has approached the Court of the learned Special Judge, Sribhumi for default bail on the ground that even after detention for a period of 180 days, the charge-sheet was not laid, and therefore, the petitioner is entitled to get default bail under Section 167(2) of the Cr.P.C. However, by order dated 20.01.2025 passed in Special (NDPS) Case No. 81/2024, the prayer for default bail was rejected by the Special Judge, Sribhumi. 5. The learned counsel for the petitioner has submitted that the petitioner was arrested on 19.07.2024 and he was produced before the Court on 20.07.2024, and was remanded to custody on the same day. The learned counsel for the petitioner has submitted that if the date of remand is taken into consideration for computation of 180 days of detention of the petitioner, the period of 180 days was completed on 15.01.2025. 6. The learned counsel for the petitioner has submitted that though in the charge-sheet which was submitted in this case, the date of charge-sheet Page No.# 3/9 has been mentioned as 11.01.2025, however, the said charge-sheet was not placed before the Special Judge, Sribhumi till 16.01.2025. 7. The learned counsel for the petitioner has further submitted that due to failure on the part of the Investigating Officer to place the charge-sheet before the Special Judge on completion of 180 days of detention of the present petitioner, the right to default bail of the petitioner accrued on 15.01.2025 at about midnight onwards. 8. The learned counsel for the petitioner submits that on the next day, i.e., on 16.01.2025, the petitioner approached the Court of the learned Special Judge, Sribhumi seeking default bail. However, his prayer for bail was rejected on the ground that on the said date itself, i.e., 16.01.2025, the charge-sheet was laid before the Trial Court. 9. The learned counsel for the petitioner has relied on the ruling of Apex Court in the case of “Enforcement Directorate, Government of India –Vs- KapilWadhawan and Anr. reported in “(2024) 7 SCC 147” wherein it was observed as follows:- “61. Since there exists vacuum in the application and details of Section 167CrPC, we have opted for an interpretation which advances the cause of personal liberty. The accused herein were remanded on 14-5-2020 and as such, the charge-sheet ought to have been filed on or before 12-7-2020 (i.e. the sixtieth day). But the same was filed, only on 13-7-2020 which was the 61st day of their custody. Therefore, the right to default bail accrued to the accused persons on 13-7-2020 at 12.00 a.m., midnight, onwards. On that very day, the accused filed their default bail applications at 8.53 a.m. ED filed the charge-sheet, later in the day, at 11.15 a.m. Thus, the default bail applications were filed well before the charge-sheet. In Ravindran [M. Ravindran v. Revenue Intelligence Directorate, (2021) 2 SCC 485 : (2021) 1 SCC (Cri) 876] and Bikramjit [Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 : (2021) 1 SCC (Cri) 85] , which followed Page No.# 4/9 the Constitution Bench in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] it was rightly held that if the accused persons avail their indefeasible right to default bail before the charge- sheet/final report is filed, then such right would not stand frustrated or extinguished by any such subsequent filing. 62. We therefore declare that the stipulated 60/90 day remand period under Section 167CrPC ought to be computed from the date when a Magistrate authorises remand. If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60/90 days' period resulting in unauthorised detention beyond the period envisaged under Section 167CrPC. In cases where the charge- sheet/final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused.” 10. The learned counsel for the petitioner has also cited a judgment of a Co-ordinate Bench of this Court in the case of “Samsun Noor @ Samsul Noor – Vs- The State of Assam” (Bail Application No. 1958/2022, dated 07.10.2022) wherein it was observed as follows:- “38. In view of the above, this Court is of the opinion that submission of the charge sheet before the Office of the Magistrate/the Court would not be sufficient compliance in terms with Section 173(2) of the Code read with Rule 38 and 69 of the Assam Police Manual Part- IV and it is only when the Magistrate/the Court competent to take cognizance of the offence, puts the initials in the charge-sheet as well as in the Register maintained with date and seal of the Magistrate/the Court, it would be that date on which the charge sheet has been deemed to have been submitted to the Magistrate/Court.” 11. On the other hand, the learned Additional Public Prosecutor has opposed the grant of bail to the present petitioner on the ground that the Page No.# 5/9 quantity of contraband seized in this case is of commercial quantity and, therefore, embargo of Section 37 of the NDPS Act, is applicable to this case. He also submits that the petitioner is also not entitled for availing the benefit of default bail, the petitioner shall have to file the bail application as soon as the right of default bail accrues but before filing of the charge-sheet. However, He also submits that in the instant case, 180 days of detention of the present petitioner was complete on 14.01.2025 and his right to file default bail accrued on 15.01.2025. However, in the instant case, he submits that the petitioner filed the bail application on 16.01.2025 and before his filing of the bail application, the charge-sheet was already placed before the learned Special Judge, Sribhumi and, therefore, he submits that the petitioner is not entitled to get default bail in this case. 12. The learned Additional Public Prosecutor has also relied the ruling of Apex Court in the case of “Hitendra Vishnu Thakur –Vs- State of Maharashtra”reported in “(1994) 4 SCC 602” wherein, the Apex Court has observed as follows:- “20. Section 57 of the Code of Criminal Procedure provides that a person arrested shall not be detained in custody by the police for a period longer than that which is reasonable but that such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the court of the Magistrate in the absence of a special order under Section 167 of the Code. The Constitution of India through Article 22(2) mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to that court and that no person shall be detained in custody beyond that period without the authority of the Magistrate. Thus, the Constitution of India as well as the Code of Criminal Procedure expect Page No.# 6/9 that an arrested person, who has been detained in custody, shall not be kept in detention for any unreasonable time and that the investigation must be completed as far as possible within 24 hours. Where the investigation of the offence for which accused has been arrested cannot be completed within 24 hours and there are grounds for believing that the accusation or information against the accused is well-founded, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate, on the production of the accused and the case diary, must scrutinise the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure. The said chapter comprises of Sections 436 to 450 but for our purposes it is only Sections 437 and 439 of the Code which are relevant. Both these sections empower the court to release an accused on bail. The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the Page No.# 7/9 investigating agency proceeds with utmost promptitude, Parliament introduced the proviso to Section 167(2) of the Code prescribing the outer limit within which the investigation must be completed. Section 167 read with Section 20(4) of TADA, thus, strictly speaking is not a provision for “grant of bail” but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an “order-on-default” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section (4) of Section 20 read with the proviso to sub-section (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (HussainaraKhatoon Page No.# 8/9 case [HussainaraKhatoon v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 : AIR 1979 SC 1369] ). This legal position has been very ably stated in AslamBabalal Desai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870 : AIR 1993 SC 1] where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in RajnikantJivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532 : 1989 SCC (Cri) 612 : AIR 1990 SC 71] wherein it was held that : (SCC p. 288, para 9) “The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.” 13. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials on record. 14. In the instant case, the petitioner is seeking bail mainly on the ground that even after his detention of 180 days behind the bars since the date of his arrest, the charge-sheet was not laid before the learned Special Judge, Sribhumi in terms of the observations of the Co-ordinate Bench of this Court in the case of “Samsun Noor @ Samsul Noor –Vs- The State of Assam” (supra). 15. On perusal of the records, it appears that the petitioner was arrested on 19.07.2024 and was remanded to custody on 20.07.2024. As per the observation of the Apex Court in the case of “Enforcement Directorate, Government of India –Vs- KapilWadhawan and Anr. (supra) the remand period Page No.# 9/9 under Section 167 of the Code of Criminal Procedure, 1973 ought to be computed from the date when the Magistrate authorizes remand. If the period of detention is computed from the date when the learned Special Judge authorized the remand of the petitioner i.e., 20.07.2024, the 180 days of remand completed on 16.01.2025. In the instant case, the charge-sheet was laid before the learned Special Judge, Sribhumi on 16.01.2025 itself. 16. In view of the aforesaid facts, this Court is of considered opinion that the charge-sheet was laid before the learned Special Judge, Sribhumi within the time prescribed by the statute i.e., 180 days. 17. Under the facts and circumstances of this case, the question of granting default bail to the petitioner does not arise. 18. The prayer for bail of the above named petitioner, therefore, is rejected. JUDGE Comparing Assistant