Madhya Pradesh High Court
Shahruk vs The State Of Madhya Pradesh on 28 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:2155
1 MCRC-54393-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 28th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 54393 of 2024
SHAHRUK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Kailash Chandra Dilliwal, Advocate for the applicant.
Shri Amit Raval, Govt. Advocate for the respondent/State.
ORDER
This first application has been filed by applicant under Section 439 of
Cr.P.C, 1973/483 of Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of
bail in connection with Crime No.40/2024 registered at Police Station –
Khargone and Department of Narcotic Drugs, District Khargone(M.P.) for
offence punishable under Sections 8/22 and 8/29 of NDPS Act. Applicant is
in judicial custody since 15.05.2024.
As per the case of prosecution, Inspector Versingh Khadiya of P.S.
Narcotic Cell, Indore(M.P.) conducted a raid to verify the secret information
on 15.05.2024 near Chota Naka Kabristan at Kasrawad. Two persons tried to
escape on motorcycle, but they met with an accident and fell down.
Shahrukh and Salim were apprehended. On personal search of Shahrukh 135
Grams of Contraband M.D. was recovered from left pocket of his pant. The
search and seizure was conducted in due compliance with the procedure.
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 1/29/2025
7:30:32 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:2155
2 MCRC-54393-2024
Shahrukh and Salim were arrested. P.S. Narcotic Cell registered FIR at
Crime No.40/2024 for offence punishable under Sections 8/22 of NDPS Act
against Shahrukh and Salim Khan. Shahrukh and Salim informed that they
have been provided the contraband by Mohammed Mirza, who was detained
at Central Jail, Bhatinda. Mohammed Mirza was interrogated in custody.
Total 53.49 Grams of Contraband M.D. was seized at the instance of
Mohammed Mirza. On completion of investigation, the final report was
submitted on 11.11.2024.
Learned counsel for the applicant forcefully contended that applicant –
Shahrukh was arrested on 15.05.2024. The Investigation Agency failed to
submit the final report within the period of 180 days prescribed under
Section 36(A) of the NDPS Act, 1985. Therefore, in view of the law laid
down in the case of Sundaresan @ Meganathan @ Mega Vs. State (1993
Cri. L.J. 3342) by the Madras High Court, the applicant deserves to be
extended benefit of default bail. Learned counsel further submits that no
offence, as alleged, is committed by the applicant. The trial would take time
to conclude. Therefore, the applicant be extended the benefit of bail.
Per Contra, learned counsel for the respondent/State submits that the
final report was submitted within the stipulated time. The chemical analysis
report of FSL shows that the contraband Methamphetamine has been
detected in the sample of the contraband. Thus, commercial quantity of
contraband(Methamphetamine) was seized from conscious possession of
applicant Shahrukh. In view of interdict contained under Section 37 of the
NDPS Act, 1985, the applicant may not be extended the benefit of bail.
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 1/29/2025
7:30:32 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:2155
3 MCRC-54393-2024
Heard the arguments, perused the grounds for grant of bail stated in
the application and the case diary.
The Supreme Court, while dealing with the default bail under the
provision of NDPS Act,1985 in case of M. Ravindran vs The Intelligence
Officer Directorate reported in (2021) 2 SCC 485 held as under :-
6.1. It is also relevant to note Section 36-A(4) of the NDPS Act for the purpose of this matter:
“36-A. Offences triable by Special Courts.–(1)-(3) * * *
(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or
Section 27-A or for offences involving commercial quantity the references in sub-section (2) of
Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where
they occur, shall be construed as reference to “one hundred and eighty days”:
Provided that, if it is not possible to complete the investigation within the said period of one
hundred and eighty days, the Special Court may extend the said period up to one year on the
report of the Public Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of one hundred and eighty days.”
6.2. Section 36-A of the NDPS Act prescribes modified application of the CrPC as indicated
therein. The effect of sub-section (4) of Section 36-A, NDPS Act is to require that investigation
into certain offences under the NDPS Act be completed within a period of 180 days instead of 90
days as provided under Section 167(2) CrPC. Hence the benefit of additional time-limit is given
for investigating a more serious category of offences. This is augmented by a further proviso that
the Special Court may extend time prescribed for investigation up to one year if the Public
Prosecutor submits a report indicating the progress of investigation and giving specific reasons
for requiring the detention of the accused beyond the prescribed period of 180 days. In the matter
on hand, it is admitted that the Public Prosecutor had not filed any such report within the 180-day
period for seeking extension of time up to one year for filing final report/additional complaint
before the trial court.
7. From the aforementioned, it is clear that in the appellant’s case, the final report was required to
be filed within 180 days from the first date of remand.
8 . This Court in a catena of judgments including Ravi Prakash Singh v. State of Bihar [ Ravi
Prakash Singh v. State of Bihar, (2015) 8 SCC 340 : (2015) 3 SCC (Cri) 605] , has ruled that
while computing the period under Section 167(2), the day on which accused was remanded to
judicial custody has to be excluded and the day on which challan/charge-sheet is filed in the court
has to be included.
18.5. Having considered both opinions, we have arrived at the conclusion that the majority
opinion in Uday Mohanlal Acharya [ Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5
SCC 453 : 2001 SCC (Cri) 760] is the correct interpretation of the decision rendered by the
Constitution Bench in Sanjay Dutt [ Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] . The decision in Sanjay Dutt [ Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] merely casts a positive corresponding obligation upon the accused to promptly apply for
default bail as soon as the prescribed period of investigation expires. As the decision in Hitendra
Vishnu Thakur [ Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC
(Cri) 1087] expressly cautions, the court cannot suo motu grant bail without considering whether
the accused is ready to furnish bail or not. This is an in-built safeguard within Section 167(2) to
ensure that the accused is not automatically released from custody without obtaining theSignature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 1/29/2025
7:30:32 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:2155
4 MCRC-54393-2024
satisfaction of the court that he is able to guarantee his presence for further investigation, or for
trial, as the case may be. Further, as the majority opinion in Rakesh Kumar Paul [ Rakesh Kumar
Paul v. State of Assam , (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] pointed out, there could be
rare occasions where the accused voluntarily forfeits his right to bail on account of threat to his
personal security outside of remand or for some other reasons. The decision in Sanjay
Dutt [ Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] clarifies that once a
charge-sheet is filed, such waiver of the right by the accused becomes final and Section 167(2)
ceases to apply.
25.2. The right to be released on default bail continues to remain enforceable if the accused has
applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the
charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of
the charge-sheet during the interregnum when challenge to the rejection of the bail application is
pending before a higher court.
25.3. However, where the accused fails to apply for default bail when the right accrues to him,
and subsequently a charge-sheet, additional complaint or a report seeking extension of time is
preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate
would be at liberty to take cognizance of the case or grant further time for completion of the
investigation, as the case may be, though the accused may still be released on bail under other
provisions of the CrPC.
Recently, the Supreme Court in case of Enforcement Directorate,
Government of India Vs. Kapil Wadhawan & Another reported in (2024) 7
SCC 147 reiterated that the period of remand must be calculated from the
date on which remand order is made by the Magistrate. The accused shall be
entitled to the default bail, despite filing of charge sheet, provided he avails
the right by filing application before filing of the charge sheet. Thus, the
period of 180 days stipulated under Section 36(A)(iv) of the NDPS Act,
1985 is to be computed from the date when the Special Judge has authorised
remand of the accused Shahrukh. The case diary and the report of
Investigation Officer reveals that applicant – Shahrukh was arrested on
15.05.2024 at 18.50 hours. He was produced before the learned Special
Judge(NDPS Act), Mandleshwar, District Khargone on 16.05.2024. He was
remanded to custody by the learned Special Judge on 16.05.2024 and the
final report was submitted on 11.11.2024 precisely on 180 th day from the
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 1/29/2025
7:30:32 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:2155
5 MCRC-54393-2024
date of first remand. Further, the applicant/ accused Shahrukh has applied
for bail on 14.11.2024 i.e. after the filing of final report by the Investigating
Agency. Therefore, the contention of applicant that he is entitled for default
bail for the reason that final report was not submitted within the stipulated
time of 180 days is merit-less.
The material on case diary also shows prima facie involvement of
the applicant in the alleged offence. The factors mentioned in Section 37(b)
(ii) of the NDPS Act, 1985 for grant of bail are not made out. Therefore, this
Court is of the considered opinion that the applicant does not deserves to be
released on bail.
The petition MCRC. No.54393 of 2024 stands dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
pn
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 1/29/2025
7:30:32 PM