IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 Bail Appl..No. 247 of 2008() ---------------------------- SC.499/2006 of DISTRICT COURT, PALAKKAD O.R.NO.1/2006/NCB/RIU, THIRUVANANTHAPURAM .................... : PETITIONER/ACCUSED NO.5: ----------------------------------------- BASANTHILAL PATTIDAR @ VASANTHILAL, AGED 46 YEARS, S/O. RAMESWAR PATTIDAR, RINGSA VILLAGE, MANSOOR DISTRICT, MADHYA PRADESH. BY ADV. SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS: COMPLAINANT: ------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL BUREAU, RIU, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE SRI.C.P.UDAYABHANU FOR NCB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.247 of 2008 ---------------------------------------- Dated this the 1st day of February 2008 O R D E R Application for regular bail. The petitioner, a person hailing from Madhya Pradesh, faces allegations in a crime registered under the N.D.P.S.Act. It will be advantageous to narrate the sequence of events. The offence was detected and some of the accused were intercepted on 15/3/2006. Investigation was conducted and final report was filed. In that final report, the petitioner was not arrayed as an accused. Trial in that case had not commenced. But in the meantime, the officials of the Narcotic Control Bureau were able to arrest the petitioner at Bombay on 22/6/2007. He was arrested and produced before the Special Court for N.D.P.S cases on 25/6/2007. As the final report had already been filed, an application was filed promptly under Section 173(8) Cr.P.C to inform the court and seek permission to conduct further investigation. That application was belatedly disposed of by the learned Sessions Judge only on 18/12/2007. Investigation is continuing. Final report has not been filed. No application under the proviso to Section 36(A)(4) has been filed and no B.A.No.247/08 2 permission has been granted. The petitioner has now come to this court with a prayer that he may be granted regular bail recognizing his indefeasible right under the proviso to Section 167(2) read with Section 36(A) (4) of the N.D.P.S.Act. 2. The learned counsel for the Narcotic Control Bureau opposes the application. What is the ground of opposition? The learned counsel was requested to explain. The date of the first remand of the petitioner admittedly was 25/6/2007. Evidently, further investigation was commenced prior to that day though formal orders were passed by the learned Sessions Judge long later on 18/12/2007. Atleast on 25/12/2007, when the period of six months elapses, the petitioner must be held to be entitled for bail by default under Section 167(2) read with 36(A)(4) of the N.D.P.S.Act. The only contention raised by the learned counsel for the Narcotic Control Bureau is that permission under Section 173(8) was granted by the learned Sessions Judge only on 18/12/2007 and hence, according to him, further time of six months must be held to be available for the Narcotic Control Bureau from that date to complete the investigation and the B.A.No.247/08 3 petitioner will not be entitled for bail by default before the elapse of six months from the date on which such permission under Section 173(8) is granted. 3. The contention, according to me, has no legs to stands on. It has got to be rejected. The period must certainly be counted not from the date on which formal permission is granted to the Narcotic Control Bureau by the learned Sessions Judge; but from the date of the first remand of the petitioner. It is now trite that Section 173(8) Cr.P.C does not contemplate any formal grant of permission by the court to the investigating officer to conduct further investigation. It is only a matter of courtesy and amity between the court and the investigating officer that such information must be furnished to the court that further investigation is being conducted by the investigating officer under Section 173(8) Cr.P.C. The filing of such petition under Section 173(8) Cr.P.C or passing of the order by the court concerned on such application cannot, at all, have any impact on the reckoning of the period of 180 days as contemplated under Section 167(2) read with Section 36(A)(4) of the N.D.P.S.Act. B.A.No.247/08 4 The proviso to Section 167(2) read with Section 36(A)(4) of the N.D.P.S.Act. confers on the accused person, an indefeasible right to claim bail, if investigation against him is not completed within a period of 180 days from the date of his first remand. The petitioner had come to this court on 09/01/2008 and admittedly final report has not been filed even now. I am, in these circumstances, satisfied that the petitioner is certainly entitled for bail by default, investigation having not been completed within a period of 180 days from the date of the first remand of the petitioner. I do, of course, see merit in the insistence made by the learned counsel for the Narcotic Control Bureau that appropriate conditions must be imposed on the petitioner. Considering the nature of allegations and the magnitude of the culpable operation, appropriate conditions can be imposed. 4. In the result, this petition is allowed. The petitioner shall be released on bail on the following terms and conditions: i) He shall execute a bond for Rs.5,00,000/- (Rupees five lakhs only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. B.A.No.247/08 5 ii) The petitioner shall make himself available for interrogation before the investigating officer at his office at Thiruvananthapuram between 10 a.m and 12 noon on all Mondays and Fridays until further orders. iii) The petitioner shall not, until further orders, leave the State of Kerala without the prior permission of the learned Sessions Judge. iv) The petitioner shall inform the investigating officer of his place of residence within the State of Kerala within a period of seven days from the date of his release and shall continue to keep the officer informed of any changes in such address from time to time. (R.BASANT, JUDGE) jsr B.A.No.247/08 6 B.A.No.247/08 7 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007