Uttarakhand High Court
Sultan Khan vs State Of Uttarakhand on 10 January, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No.2560 of 2023
Sultan Khan .............Applicant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. Harshpal Sekhon and Mr. Basant Singh, Advocates for
the applicant.
Mr. Siddhartha Bisht, AGA with Mr. Himanshu Sain, Brief
Holder for the State.
Hon'ble Ravindra Maithani, J. (Oral)
The applicant is in judicial custody in
FIR/Case Crime No.486 of 2023, under Section 8/21 of
the Narcotic Drugs and Psychotropic Substances Act,
1985, Police Station Kashipur, District Udham Singh
Nagar. He has sought his release on bail.
2. Heard learned counsel for the parties and
perused the record.
3. According to the FIR, 1.024 Kg. Smack was
allegedly recovered from the possession of the applicant
Sultan Khan.
4. Learned counsel for the applicant would
submit that the trial is much delayed; witnesses have not
been examined for a long; the applicant was remanded to
the judicial custody on 22.09.2023; charge-sheet was not
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filed within 180 days from then; it was filed on
20.03.2024, not within 180 days; on 181th day i.e. on
20.03.2024, the applicant filed a default bail application;
subsequent thereto, charge-sheet was filed in the case;
the matter was taken up for hearing on 20.03.2024, but it
was adjourned for hearing on 23.03.2024 and the default
bail application of the applicant was rejected on the
ground that 20.03.2024 is 180th day. It is argued that this
is not correct.
5. Learned counsel for the applicant referred to
the principle of law, as laid down in the case of
Enforcement Directorate, Government of India vs. Kapil
Wadhawan, (2024)7 SCC, 147. In this case, Hon’ble
Supreme Court inter alia observed that, “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. ……… In other words, the very moment the
stipulated 60/90 day remand period expires, an
indefeasible right to default bail accrues to the
accused.”
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6. Learned counsel for the applicant would
submit that if counted from the date of remand, the
counting of days shall be as follows:-
i. 09 days in the month of September, 2023.
ii. 31 days in the month of October, 2023.
iii. 30 days in the month of November, 2023.
iv. 31 days in the month of December, 2023.
v. 31 days in the month of January, 2024.
vi. 29 days in the month of February, 2024.
vii. 19 days in the month of March, 2024.
7. It is argued that the counting of the above days
comes to 180 days, which expires on 19.03.2024.
Accordingly, it is argued that 20.03.2024 would be 181th
day from the date of remand. Till that date, charge-sheet
was not filed in the case.
8. Learned State counsel would submit that in the
instant matter, charge-sheet was submitted prior to filing
of the bail application.
9. The court below had declined default bail to the
applicant on the ground that 20.03.2024 is 180th day,
whereas, as counted, 20.03.2024 admittedly is 180th day.
Then a question arose, as to whether the applicant had
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filed the bail application prior to filing of the charge-sheet
in the case. When these questions are raised, the Court
sought a report from the concerned court. The Court, in
fact, passed the following order on that date:-
“Let a copy of this order be also sent to the
concern court with a request to the court to
give information to this Court, as to whether
the bail application in the instant case was filed
prior to receiving of the charge-sheet? Or the
bail application was filed subsequently after
receiving of the charge-sheet?”
10. A report was received from the concerned court
that, in fact, charge-sheet was filed at 12:05 PM, which
was produced before the Judge at 12:30 PM, whereas the
bail application was filed by the applicant on 12:45 PM.
There is no record of that. This report has been filed by
the concerned court based on the statement of the
concerned staff.
11. On the contrary, learned counsel for the
applicant would submit that bail application was filed
prior to filing of the charge-sheet, which it is argued is
evident from the Case Information System (“CIS”) record,
on which, the matters are uploaded. It is argued that the
bail application was uploaded at Serial No.1064,
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whereas the charge-sheet was filed at Serial No.1072 on
the same date. This factual narration is not in dispute.
12. The default bail has been declined merely on
the ground that 20.03.2024 is 180th day, which it is not
correct. It is 181th day. There are contradictory versions
with regard to filing of the bail application and charge-
sheet. On the one hand, according to the applicant, the
bail application was filed prior to filing of the charge-sheet
and on the other hand, according to the State, charge-
sheet had already been filed before filing of the bail
application. It gives time, as to what time charge-sheet
has been filed and at what time the bail application has
been filed. There is no record of it. It is based on the
memory of the concerned Clerk. How is it possible that a
court employee may memorize, as to at what time
application was filed in a particular case, unless
something special has happened in that case on that
particular date?
13. On the other hand, the CIS record has been
filed, according to which, the serial number of bail
application is 1064, whereas the serial number of the
charge-sheet is 1070. Although, it is also stated on behalf
of the State that collectively, the documents are sent for
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uploading on the CIS and here the priority is not
maintainable. This argument may not be accepted to
uphold that charge-sheet was filed prior to filing of the
bail application. According to the CIS, the charge-sheet
was filed subsequent to filing of the bail application. This
has to be accepted true in absence of any of the other
record which maintains time of filing of any document in
the court. In the instant case, there is no other document
or record, maintained by the court to reveal as to at what
time the charge-sheet was submitted and at what time
the bail application has been filed.
14. This Court is of the view that in the instant
case, charge-sheet was filed subsequent to filing of the
bail application. Both these documents were filed beyond
180th day. Therefore, the applicant is entitled for default
bail.
15. Having considered, this Court is of the view
that it is a case fit for bail and the applicant deserves to
be enlarged on bail.
16. The bail application is allowed.
17. Let the applicant be released on bail, on his
executing a personal bond and furnishing two reliable
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sureties, each of the like amount, to the satisfaction of the
court concerned.
(Ravindra Maithani, J.)
10.01.2025
Sanjay