# IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4178 OF 2006 Ms.Malin Lundberg Isabelle .. Applicant Versus Union of India & Anr. .. Respondent Mr.A.P.Mundargi, Senior Advocate for applicant Ms.Poornima Kantharia for NCB Mr.Y.M.Nakhwa, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd December 2006 Judgement:- . The short question in this criminal application for bail is whether the provisions of Section 10 of the General Clauses Act can be applied to a case covered by proviso to Section 167(2) of Cr.P.C. In other words, despite the period of sixty days or ninety days prescribed therein being over, the mandate to release the accused on bail does not come into play, if the charge sheet is filed on sixty-first day or ninety-first day. 2. The facts lie in a very narrow compass. The applicant before me is a foreigner. To be precise she is a citizen of Finland. She is in custody since 10th May 2006 for alleged possession of 6534 gms. of Hashish, which quantity is a commercial quantity and, therefore, there is violation of relevant provisions of N.D.P.S. Act. She was produced before the learned Special Judge on 10th May 2006. It is her case that 180 days expired from the date of such production on 5th May 2006 and an indefeasible right accrued in her favour by virtue of section 36A of NDPS Act, 1985 read with Section 167(2) of Cr.P.C. She applied for bail on 6th November 2006. The short submission on her behalf was that section 36 of N.D.P.S. Act indicates that complaint/charge sheet in cases where commercial quantity is involved be filed within 180 days. Upon failure to do so, the right accrues in favour of applicant to be released on bail. The same was exercised before filing of charge sheet/complaint and upon expiry of the period of 180 days, the 180th day being 5th November 2006. 3. This application was contested by the prosecution and it was contended that 5th November 2006 being Sunday, the complaint/charge sheet was laid on 6th November 2006 during working hours and the so called indefeasible right, therefore, does not accrue in favour of the applicant. Consequently, her bail application should be dismissed. 4. Accepting this argument on behalf of prosecution and by referring to section 10 of General Clauses Act 1897, learned Special Judge has denied bail to the applicant vide his order dated 6th November 2006. That is how the present application is preferred in this Court. 5. Mr.Mundargi, learned Senior Counsel for applicant submits that there cannot be any dispute about the applicability of provisions contained in section 36A of N.D.P.S. Act and Section 167(2) of Cr.P.C. He submits that section 10 of General Clauses Act cannot be applied nor its principles invoked in the instant case because the pre-requisite prescribed therein is not satisfied in this case. He submits that this is a matter of liberty of an individual. There is a mandate flowing from the Statutory provisions. There is no discretion left in the court. Upon completion of the period of 180 days, if no complaint/charge sheet is filed, then, the accused must be enlarged on bail, if he offers to do so. It is only if the accused does not wish to be enlarged on bail or does not offer himself for being so enlarged, that bail can be denied. Otherwise, releasing on bail is the mandate flowing from the provisions. Section 10 of General Clauses Act deals with computation of time, where by any Central Act or Regulation made after the commencement of General Clauses Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. He submits that this provision does not apply to any act or proceedings to which Limitation Act applies. However, this is a provision which cannot be invoked to defeat the mandate of section 167(2) of Cr.P.C. and it is now well settled by two decisions of this Court. Two learned Single Judges of this Court have taken a view that Section 10 can have no application to cases of grant of bail under proviso to section 167(2) of Cr.P.C. These judgements are binding upon me. They were binding upon learned Special Judge, as well. In such circumstances, and when N.D.P.S. and Cr.P.C. contain pari-materia provisions, the applicant deserves to be enlarged on bail. 6. In support of his contentions Mr.Mundargi relied upon following decisions:- i) Union of India Vs. Thamisharasi & Ors. (J.T. 1995 (4) S.C. 253; ii) Uday Mohanlal Acharya Vs. State of Maharashtra (2001 S.C.C. (Cri) 760 iii) Rajeev Chaudhary Vs. State (NCT) Delhi (2001 S.C.C. (Cri) 819; iv) State of Maharashtra Vs. Sharad B. Sarda (1983 (1) Bom.C.R. 578); v) Habibulla Saudagar Vs. State of Maharashtra (1988 Mh.L.J. 285); vi) Dinesh Yadav Vs. State and Ors. (2002 Cri.L.J. 1067) vii) Ganesh Prasad Vs. State of M.P. (2001 Cri.L.J. 3444 7. On the other hand Ms.Kantharia learned Advocate appearing for Union of India submits that the bail has been rightly denied to the applicant. She submits that 5th November 2006 being Sunday, the complaint/charge sheet was laid on 6th November 2006 which is a working day/Monday. She states that in such circumstances Section 10 of the General Clauses Act was applicable and the principle underlying the same would hold good even in a case covered by section 167(2) of Cr.P.C. In any event, she submits that the applicant in this case is facing trial for offences punishable under N.D.P.S. Act. The procedure under the N.D.P.S. Act is that the NCB files a complaint in Court of Special Judge. Unlike any other case where a charge sheet or challan is laid in a special case under N.D.P.S.Act, the Bureau files a complaint. That complaint is to be filed in the Court. Filing/lodging of the same cannot be done on Sunday and was, therefore, rightly done on the very next day i.e. Monday. The complaint having been filed within working hours, the 180th day would be 6th November 2006. The complaint being lodged at 11.00 a.m. the so called indefeasible right of the applicant is extinguished and consequently the application was rightly rejected. 8. In support of her submissions, Ms.Kantharia has relied upon the following decisions: i) State of M.P. Vs. Rustam & Ors. (1995 Supp (3) S.C.C. 221; (ii) H.H.Raja Harinder Singh Vs. S.Karnail Singh (A.I.R. 1957 S.C. 271) (iii) Nirapat and Anr. Vs. State of U.P. (1988 ALL.L.J. 1146) 9. For properly appreciating the rival contentions a reference to both sections 36A of N.D.P.S. Act and Section 167(2) of Cr.P.C. is necessary. The same read as under:- "36A: Offences triable by Special Courts:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 - (a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (b) Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole such Magistrate is an Executive Magistrate; "167(2): The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise 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" 10. In the case reported in 1995 J.T. (4) S.C. 253 (Union of India Vs. Thamisharasi & Ors) the Supreme Court has observed that the proviso to sub-section (2) of Section 167 of Cr.P.C. can be invoked by an accused arrested for commission of an offence under the N.D.P.S. Act, for releasing him on bail on the expiry of the total period specified therein if the complaint is not filed within that period. In this context the Supreme Court has observed thus:- "8: Section 36-A makes it clear that a person accused of or suspected of the commission of an offence under the N.D.P.S.Act is to be forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 Cr.P.C.; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person so forwarded to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr.P.C. in relation to an accused person forwarded to him under that Section. The clear reference to the power of the magistrate under Section 167 Cr.P.C., particularly sub-section (2) thereof, is an indicatiion that no part of sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the N.D.P.S.Act. This conclusion is reinforced by some other provisions of the N.D.P.S.Act. Section 36-C says that "save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court." This also indicates that the provisions in the Code of Criminal Procedure relating to bail and bonds are applicable to the proceedings before a Special Court under the N.D.P.S.Act "save as otherwise provided in this Act." Section 51 also says that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Except for Section 37 of the N.D.P.S.Act, no other provision of the N.D.P.S.Act is relied on to contend that there is any inconsistent provision in the N.D.P.S.Act to exclude the applicability merely of the proviso to sub-section (2) of Section 167 Cr.P.C. when sub-section (2) of Section 167 of the Code is made expressly applicable by Section 36-A of the N.D.P.S.Act. "9: The question, therefore, is : Whether Section 37 of the N.D.P.S.Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 Cr.P.C. is expressly made applicable by the N.D.P.S.Act? The non-obstante clause at the beginning of sub-section (1) of Section 37 indicates that the provisions in clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under this Act to be cognizable. Clause (b) imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section (2) of Section 37. Clause (b) of sub-section (1) specifies the two limitations on granting of bail, namely, (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned Additional Solicitor General contends that these limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 indicate that the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. is excluded in such cases. We are unable to accept this contention. "13: Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provision in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. "14: In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 Cr.P.C. in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the N.D.P.S.Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr.P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant. 11. Further in a decision reported in 2001 S.C.C. (Cri) 760, the Supreme Court has referred to its later decision this very point reported in 1996(1) S.C.C. 718 (Dr.Bipin Panchal Vs. State of Gujarat). 12. The right stood extinguished in Dr.Panchal’s because of peculiar facts of that case. However, the principle that sub-section 2 of Section 167 of Cr.P.C. would apply to accused under N.D.P.S. Act has been noted and followed. Later decision is of Uday Acharya Vs. State of Maharashtra, reported in 2001 S.C.C. (Cri) 760. 13. The Supreme Court noting the mandate of the relevant provisions observes thus:- "6: There cannot be any dispute that on expiry of the period indicated in the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure the accused has to be released on bail, if he is prepared to and does furnish the bail. Even though a Magistrate does not possess any jurisdiction to refuse the bail when no charge-sheet is filed after expiry of the period stipulated under the proviso to sub-section (2) of Section 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate. In other words, without an order of the Magistrate the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 cannot be given effect to and there lies the rub. The grievance of the accused is that for a variety of reasons the Magistrate or even the superior court would refuse to pass an order releasing the accused on bail, notwithstanding the preconditions required under the proviso are satisfied and then when the accused moves the High Court or the Supreme Court during the interregnum the police files a challan. It was also contended by Mr.Tulsi that a Public Prosecutor may take adjournment from the court when the bail application was being moved and then would persuade the investigating agency to file a challan and then contend that the court would not be entitled to release the accused on bail under the proviso to sub-section (2) of Section 167, and in that situation not only the positive command of the legislature is flouted but also an unauthorised period of custody is being legalised and this would be an infraction of the constitutional provision within the meaning of Article 22. In Hitendra Vishnu Thakur v. State of Maharashtra two learned Judges of this Court construed the provisions of Section 167 of the Code of Criminal Procedure Code read with sub-section (4) of Section 20 of TADA. After examining in detail the object behind the enactment of Section 167 of the Code of Criminal Procedure and the object of Parliament introducing the proviso to sub-section (2) of Section 167 prescribing the outer limit within which the investigation must be completed the Court expressed that the proviso to sub-section (2) of Section 167 read with Section 20(4)(b) of TADA 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 and such order is generally termed as an "order on default." The Court also held that an obligation is cast upon the court to inform the accused of his right of being released on bail and enable him to make an application in that behalf. It was also further held that the accused would be entitled to move an application for being admitted on bail and the Designated Court shall release him on bail if the accused seeks to be so released and furnished the requisite bail. The Court declined to agree with the contention of the accused that the Magistrate must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. "10: In Bipin Shantilal Panchal (Dr) v. State of Gujarat, a three-Judge Bench decision, this Court referred to the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure and held that though the aforesaid provisions would apply to an accused under the NDPS Act,but since the charge-sheet had already been filed and the accused is in custody on the basis of orders of remand passed under other provisions of the Code the so-called indefeasible right of the accused must be held to have been extinguished, as was held by the Constitution Bench in Sanjay Dutt. The Court observed thus: (SCC p.720, para 4). "Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra." "13: In State of M.P. v. Rustam this Court set aside the order of the High Court where the High Court had released the accused on bail, charge-sheet not having been filed within the period stipulated in Section 167(2) of the Code of Criminal Procedure, as by the time High Court entertained the bail application, challan had already been filed, this Court had observed that the court is required to examine the availability of the right to compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail. This Court came to the conclusion: (SCC p.223, para 4) "On the dates when the High Court entertained the petition for bail and granted it to the accused-respondents, undeniably the challan stood filed in court, and then the right as such was not available." A conspectus of the aforesaid decisions of this Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub-section (2) of Section 167 and right can be availed by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail,necessarily, therefore, an order of the court has to be passed. It is also further clear that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt case. The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of"? Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused filed an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of" is interpreted to mean that the accused must factually be released on bail, then in a given case where the magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would be in the interest of justice to negate the same by interpreting the expression "if not availed of" in a manner which is capable of being abused by the prosecution. A two-Judge Bench decision in this Court in State of M.P. v. Rustam setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and therefore, the right stood extinguished, in our considered opinion does not express the correct position in law of the expressions "if already not availed of", used by the Constitution Bench in Sanjay Dutt. We would be failing in our duty if we do not notice the decisions mentioned by the Constitution Bench in Sanjay Dutt case which decisions according to the learned counsel, appearing for the State, clinch the issue. In Makhan Singh Tarsikka v. State of Punjab an order of detention had been assailed in a petition filed under Article 32, on the ground that the period of detention could not be indicated in the initial order itself, as under the provisions of the