Calcutta High Court Grants Statutory Bail Under NDPS Act, Says ‘Detention Beyond 180 Days Without Valid Charge Sheet Is Illegal’ and Courts Must Not Be ‘Hyper-Technical’ on Personal Liberty
Sanchayita Lahkar
The Division Bench of the Calcutta High Court comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray granted statutory bail to an accused arrested under the Narcotic Drugs and Psychotropic Substances Act, 1985. The court stated that a bail application filed prior to the expiry of the statutory 180-day period could be treated as one for default bail if the right accrues during its pendency and no valid charge sheet is filed in the interim..
The petitioner, Rajiv Mondal @ Rajib, was arrested on March 17, 2024, for alleged possession of 150 bottles of phensedyl cough syrup containing codeine phosphate. The arrest was made under Section 21(C) of the NDPS Act. A charge sheet was filed on June 19, 2024, the 84th day after arrest, without including the Forensic Science Laboratory (FSL) report.
Subsequently, on September 5, 2024 (the 172nd day), the petitioner’s bail application was rejected by the trial court. On the 179th day (September 12, 2024), the petitioner affirmed and filed a bail application before the Calcutta High Court. The supplementary charge sheet, including the FSL report confirming the presence of narcotics, was filed on October 3, 2024 (the 200th day).
The petitioner’s counsel argued that the statutory period of 180 days expired during the pendency of the bail application. Citing Section 36A(4) of the NDPS Act and Section 187(3) and 187(9) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), he submitted that the petitioner was entitled to statutory bail.
He contended that no valid charge sheet existed on the 181st day, as the earlier one was filed without the FSL report, rendering it incomplete. He further asserted that the petitioner was not informed of his right to default bail upon expiry of the statutory period, which, according to judicial precedent, should have been disclosed by the court.
In support of his submissions, counsel relied on Idul Mia v. State of West Bengal, 2024 SCC OnLine Cal 9109, where it was held that a charge sheet lacking an FSL report was incomplete and that statutory bail could be granted after 180 days.
The State did not dispute the facts but raised two legal questions: whether an accused could exercise the right to default bail before the right had accrued, and whether an application for regular bail filed before expiry of the statutory period could be treated as one for default bail thereafter. The State cited M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, to argue that the right to default bail arises only upon failure to file a valid charge sheet within the stipulated period, and that the petitioner had not exercised that right before the charge sheet was supplemented.
The State also distinguished the Idul Mia case, noting that the application for default bail in that matter was made after the statutory period expired, unlike the present case where the application was filed on the 179th day.
The court noted the issue for determination: "if an accused who is in judicial custody in connection with an NDPS case, files an application for bail prior to expiry of 180 days from the date of his arrest and during the pendency of that application the period of 180 days (or one year as the case may be) expires, and charge-sheet is yet to be filed, should statutory bail be granted to the accused person on the basis of his pending application?"
The Bench recorded that a charge sheet under NDPS must be accompanied by the chemical report: "a charge-sheet filed sans the chemical report is an incomplete charge-sheet."
It observed that the chemical report was filed only on October 3, 2024, and the application for bail had been filed on September 12, 2024. Hence, on the 181st day after arrest, no valid charge sheet had been filed.
The Bench considered the Supreme Court judgements in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, and M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485. In Rakesh Kumar Paul, the Supreme Court had observed:
"In matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty."
The court further recorded from Rakesh Kumar Paul:
"It would be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ‘default bail’, to at least apprise him or her of the indefeasible right."
Referring to M. Ravindran, the court noted:
"The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge-sheet."
The Bench concluded:
"In matters of personal liberty, one cannot be ritualistic and hyper-technical. I am of the view that this application should be treated as one for default bail and should be allowed."
It stated that following expiry of 180 days without a valid charge sheet, continued detention would be unlawful:
"Each moment of the accused person’s detention after expiry of the time periods indicated above, becomes illegal, having no sanction of law."
Accordingly, the court directed:
"The petitioner, namely, Rajiv Mondal @ Rajib, shall be released on bail upon furnishing a bond of Rs. 25,000/-, with two sureties of like amount each, one of whom must be local, to the satisfaction of the Ld. Judge, Special Court (under N.D.P.S. Act) Barasat, North 24-Parganas."
The court-imposed conditions on his movement, court attendance, and contact with witnesses. It also stated:
"In the event the petitioner fails to adhere to any of the conditions stipulated above without justifiable cause, the trial court shall be at liberty to cancel the petitioner’s bail in accordance with law without further reference to this court."
Advocates Representing the Parties
For the Petitioner: Mr. Angshuman Chakraborty, Advocate
For the State: Mr. Anand Keshari, Advocate; Ms. Jonaki Saha, Advocate
Case title: Rajiv Mondal @ Rajib v. The State of West Bengal
Case Number: CRM (NDPS) 1509 of 2024
Bench: Justice Arijit Banerjee, Justice Apurba Sinha Ray
[Read/Download order]
