# Rakesh Kumar Rathore (In Jail) v. Union of India

- **Citation:** (2021) 3 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-03
- **Case number:** Criminal Misc. Bail Application No. 21722 of 2020
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-rathore-in-jail-v-union-of-india-46934
- **Pages:** 14

## Headnote

A. Criminal Law - Narcotics Drugs and
Psychotropic Substances,Act,1985-Section
8/22,30
-application-rejection-challenge
to-refusing default bail u/s 167(2) Cr.P.C.-
Narcotics drugs were recovered from the
godown of the applicant-applicant had no
licence for godown nor he had any bill of
recovered
drugs-prosecution
filed
an
application u/s 36A(4) of the Act, seeking
extension
of
time
for
investigationapplication for default bail rejected by
giving
further
4
months
time
to
investigate-the
period
of
180
days
prescribed u/s 36A(4) of the Act for
completing the investigation and filing
3 All. Rakesh Kumar Rathore Vs. Union of India
29
chargesheet expired on 19.04.2020, but
before expiry of said period, Apex Court
order
dated
23.03.2020
(Sou
Motu
cognizance due to Covid-19 Pandemic)
was operative-due to Covid 19 Pandemic,
the remedies effected by limitation period
provided under Special Acts-on account of
this reason, the argument of the applicant
that order dated 23.03.2020 has not been
passed for the benefit of the prosecution,
is not liable to be accepted.(Para 1 to 19)

The Bail Application is rejected. (E-5)

List of Cases cited: -

## Text

_Characters 0–39,814 of 47,443. This is a partial read: ask again with offset=39814 for what follows._

28 INDIAN LAW REPORTS ALLAHABAD SERIES
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interest of
the public/ State and other circumstances,
but without expressing any opinion on the
merits, I am of the view that it is a fit case
for grant of bail.

7. Let the applicant Vijay Gupta
involved in the aforesaid crime, be released
on bail on his furnishing a personal bond
and two sureties each in the like amount to
the satisfaction of the court concerned with
the following conditions that :-

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

3. The applicant shall not indulge
in any criminal activity or commission of
any crime after being released on bail.

4. In case the applicant has been
enlarged on short term bail as per the order
of committee constituted under the orders
of Hon'ble Supreme Court his/her bail shall
be effective after the period of short-term
bail comes to an end.

5. The applicant shall be enlarged
on bail on execution of personal bond
without sureties till normal functioning of
the courts is restored. The accused will
furnish sureties to the satisfaction of the
court below within a month after normal
functioning of the courts are restored.

8. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

9. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

10. The concerned Court /Authority
/Official shall verify the authenticity of
such computerized copy of the order from
the
official
website
of
High
Court
Allahabad and shall make a declaration of
such verification.
----------
(2021)03ILR A28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 21722 of
2020

Rakesh Kumar Rathore
 ...Applicant(In Jail)
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Sri Ram Prakash Dwivedi, Sri Deelip Kumar,
Sri Pranshu Dwivedi, Sri Manish Kumar

Counsel for the Respondents:
Sri Narendra Deo Rai, Sri Krishna Agarawal

A. Criminal Law - Narcotics Drugs and
Psychotropic Substances,Act,1985-Section
8/22,30
-application-rejection-challenge
to-refusing default bail u/s 167(2) Cr.P.C.-
Narcotics drugs were recovered from the
godown of the applicant-applicant had no
licence for godown nor he had any bill of
recovered
drugs-prosecution
filed
an
application u/s 36A(4) of the Act, seeking
extension
of
time
for
investigationapplication for default bail rejected by
giving
further
4
months
time
to
investigate-the
period
of
180
days
prescribed u/s 36A(4) of the Act for
completing the investigation and filing
3 All. Rakesh Kumar Rathore Vs. Union of India
29
chargesheet expired on 19.04.2020, but
before expiry of said period, Apex Court
order
dated
23.03.2020
(Sou
Motu
cognizance due to Covid-19 Pandemic)
was operative-due to Covid 19 Pandemic,
the remedies effected by limitation period
provided under Special Acts-on account of
this reason, the argument of the applicant
that order dated 23.03.2020 has not been
passed for the benefit of the prosecution,
is not liable to be accepted.(Para 1 to 19)

The Bail Application is rejected. (E-5)

List of Cases cited: -

1. Sudhakar & ors. Vs St. of U.P., (1985) 1 Crimes,
(HC) SC, 582

2. Abhishek Srivastava Vs St. of U.P., (2020), B.A.
No. 5384 of 2020

3. M. Ravindran Vs Intelligence Officer, Directorate
of Revenue Intelligence, (2020) AIR SC 5245

4.
In
Re:
Cognizance
for
Extension
of
Limitation,Suo Motu Writ Petition(C) No.s 3/2020

5. Settu Vs St., HC of Madras (2020) 3 MLJ Crl.
570

6. S. Kasi Vs St. thru Insptr. Of Police,Samaynallur
P.S., Madurai Distt.,(2020) SCC OnLine SC 529

(Delivered by Hon'ble Sanjay Kumar Singh, J.)

1- Heard Mr. Deelip Kumar, learned
Senior counsel assisted by Mr. Ram
Prakash Dwivedi and Mr. Manish Kumar
learned counsel for the applicant and Mr.
Krishna
Agarawal,
learned
counsel
appearing
on
behalf
of
opposite
party/(Union of India through Central
Bureau of Narcotics, Gwalior). Perused the
record.

2- In the present case applicant is
accused for the alleged offence under
Section 8/22 and 30 of the N.D.P.S. Act and
is aggrieved on account of refusing default
bail to him under Section 167(2) of the
Code of Criminal Procedure, by the trial
Court vide order dated 17.07.2020.

Suo
Motu
order
dated
23.03.2020
passed
by
the
Hon'ble
Supreme Court, In Re : Cognizance for
Extension of Limitation.

3- Here it would be apt to mention
that applicant is in jail since 22.10.2019
and before expiry of 180 days (i.e. on
19.4.2020) limitation period for completing
investigation, as provided under Section
36A(4) of the N.D.P.S. Act, the Apex Court
considering the situation arising out of
challenge faced by the country on account
of Covid-19 virus passed the order dated
23.03.2020 in Suo Motu Writ Petition
(Civil) No(s). 3/2020 extending the period
of limitation prescribed under the general
law of limitation or special laws (both
Central and/or State) w.e.f. 15.03.2020 till
further order/s. The aforesaid order dated
23.03.2020
of
the
Apex
Court
is
reproduced herein below :

"This Court has taken Suo Motu
cognizance of the situation arising out of
the challenge faced by the country on
account of Covid-19 Virus and resultant
difficulties that may be faced by litigants
across
the
country
in
filing
their
petitions/applications/suits/appeals/all
other proceedings within the period of
limitation prescribed under the general law
of limitation or under Special Laws (both
Central and/or State). To obviate such
difficulties
and
to
ensure
that
lawyers/litigants do not have to come
physically to file such proceedings in
respective Courts/Tribunals across the
country including this Court, it is hereby
ordered that a period of limitation in all
such proceedings, irrespective of the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation prescribed under the general law
or Special Laws whether condonable or not
shall stand extended w.e.f. 15th March
2020 till further order/s to be passed by this
Court in present proceedings.

We are exercising this power
under Article 142 read with Article 141 of
the Constitution of India and declare that
this order is a binding order within the
meaning
of
Article
141
on
all
Courts/Tribunals and authorities.

This order may be brought to the
notice of all High Courts for being
communicated
to
all
subordinate
Courts/Tribunals within their respective
jurisdiction.

Issue notice to all the Registrars
General of the High Courts, returnable in
four weeks."

Issue involved in the matter.

4- The issue which arises for
consideration in the present case before this
Court is "what would be effect of order
dated 23.3.2020 (supra) passed by the Apex
Court in Suo Motu Writ Petition (C) No(s).
3/2020, In Re : Cognizance for Extension
of Limitation, on the right of applicant in
granting default bail, who is accused for the
alleged offence under N.D.P.S. Act (Special
Act) and whether accused applicant is
entitled to be released on default bail
ignoring the order dated 23.3.2020".

Prosecution case.

5- The prosecution case in brief is that
on the basis of information, the officers of
the Central Bureau of Narcotics, Gwalior
searched the godown of the applicant
Rakesh Kumar Rathore on 22.10.2019,
which
is
situated
near
New
Gupta
Transport, Free Ganj, P.S. Hari Parvat,
District-Agra
and
recovered
81528
Buprenorphine 2ml Inj. 0.3mg/ml, 73900
Pentazocine 1ml Inj. 30ml/mg, 760737
Alprazolam Tab 0.5 mg, 608000 Tramadol
tab. 100Mg, 185856 Tramadol tablet 50
mg, 4000 Tramadol 37.5 mg, 19725
Diazepam
2ml
Inj.
5mg/ml,
11400
Nitrazepam
Tab.
10mg
and
20000
Zolpidem Tab 10 mg. On being asked about
the aforesaid recovery, the applicant
disclosed that he does not have any
document or bill of recovered psychotropic
drugs and does not have license for the
godown, where the aforesaid psychotropic
drugs were kept. The godown from where
the psychotropic drugs have been recovered
is in the ownership of Mrs. Sunita Devi
wife of Rakesh Kumar Rathore as the same
had been taken on lease by her for a period
from 15.09.2016 to 04.09.2022. It is further
the case of the prosecution that inventory of
aforesaid seized material in 135 bags was
prepared at the godown of the applicant and
since there was no arrangement of light in
the godown and also considering the
security issues to the seized material, goods
were shifted to C.G.S.T. Office for
completing further legal formalities i.e.
drawl of batch-wise sample from the
recovered psychotropic drugs. As such, rest
of the proceedings were completed at the
C.G.S.T. Office, Sanjay Place, Agra.

6- In view of above, the applicant was
arrested on 22.10.2019 and remanded to the
judicial custody on the same day i.e. on
22.10.2019
for
the
alleged
offence
punishable under Section 8/22, 30 of the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (in short "the
N.D.P.S. Act").

About
bail
application
of
the
applicant.

7- Initially this bail application under
Section 439 Cr.P.C. dated 20.12.2020 has
3 All. Rakesh Kumar Rathore Vs. Union of India
31
been filed on behalf of the applicant after
rejection of his regular bail application vide
order dated 19.12.2020 of Additional
Session Judge, Agra with a prayer to
release him on bail in Case Crime No. 03
of 2019, under Section 8/22 and 30 of the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985, Central Bureau of
Narcotics, Gwalior during the pendency of
trial.

8- The applicant during pendency of
his aforesaid bail application before this
Court
filed
an
application
dated
14.05.2020 seeking default bail under
Section 167(2) of the Code of Criminal
Procedure, 1973 before the Court of
Sessions Judge/Special Judge (N.D.P.S.
Act), Agra, whereas the prosecution has
filed an application under Section 36A(4)
of the N.D.P.S. Act dated 29.06.2020
seeking extension of time to conclude the
investigation. Learned Special Judge
(N.D.P.S. Act) Agra vide order dated
17.07.2020 decided both the aforesaid
applications and allowed the application
dated 29.06.2020 of the prosecution
granting four months further time to
complete
the
investigation
and
simultaneously rejected the application
dated 14.05.2020 of the applicant for
default bail under Section 167(2) Cr.P.C.

9- The aforesaid order dated
17.07.2020
has
been
filed
by
the
applicant in the instant bail application
before this Court through supplementary
affidavit dated 26.08.2020 and thereafter
applicant has come up with the plea
therein that applicant is entitled for grant
of default bail as per the provisions of
Section 167(2) of Cr.P.C. On 17.08.2020,
prosecution has filed complaint dated
17.08.2020 before the trial court and copy
of the same has also been brought on
record before this Court as Annexure No.
C.A.-1 to the counter affidavit dated
19.10.2020.

Submissions on behalf the accused
applicant.

10- Mr. Deelip Kumar, learned
counsel for the applicant challenging the
order dated 17.7.2020 (supra) rejecting
the prayer for default bail of the applicant
submitted that:-

10.1-On
22.10.2019
the
applicant was arrested and remanded to
judicial custody for the alleged offence
punishable under Section 8/22, 30 of the
N.D.P.S. Act. The period of 180 days
prescribed under Section 36(4) of the
N.D.P.S.
Act
for
completing
the
investigation
and
filing
charge
sheet/complaint expired on 19.04.2020,
but no complaint was filed by the
prosecution
(Central
Bureau
of
Narcotics), therefore, legal right for grant
of default bail to the accused applicant
had accrued on 20.04.2020. When right
has been accrued to the applicant for
grant of default bail, the same cannot be
taken out by any means or order.

10.2-The Court concerned had
no power to remand the applicant beyond
the stipulated period of 180 days. He
must pass an order of default bail and
communicate the same to the accused
applicant to furnish the requisite bail
bonds.

10.3-Since the court of learned
Special Judge (N.D.P.S.), Agra was not
functioning at that time, on account of
pandemic
COVID-19,
therefore,
on
opening
the
court,
applicant
filed
application dated 14.05.2020 under Section
167(2) Cr.P.C. seeking default bail.

10.4-The
application
dated
29.06.2020 of the prosecution seeking
32 INDIAN LAW REPORTS ALLAHABAD SERIES
extension
of
time
to
conclude
the
investigation in view of Section 36A(4) of
N.D.P.S. Act was filed after expiry of 180
days
without
disclosing
any
reason,
therefore, application dated 29.06.2020 of
the prosecution was not maintainable.

10.5-During pandemic COVID-19
also there was no prohibition for the
prosecution to complete investigation and to
file charge sheet or complaint against the
applicant.

10.6-So far as above referred Suo
Motu order dated 23.03.2020 passed by
Hon'ble Apex Court extending the period of
limitation prescribed under the general law of
limitation or special laws (both Central and/or
State) is concerned, it is submitted that the
said order has been passed for the benefit of
litigants, who are represented by lawyers and
not for the benefit of the prosecution. Said
order has come to the rescue of the accused.
It is further submitted that the law of
limitation bars the remedy, but not the right of
accused, therefore indefectible right of the
accused applicant cannot be taken out under
the garb of order dated 23.03.2020 of the
Apex Court.

10.7-Lastly, on the strength of
aforesaid submissions, it is prayed that
applicant is entitled to be released on default
bail under Section 167(2) of Cr.P.C.

10.8-Learned
counsel
for
the
applicant
relied
upon
following
three
judgments :

i)-1985 (1) Crimes (High Court)
SC 582, Sudhakar and others Vs. State of
U.P.

ii)-Order
dated
25.11.2020
passed in Bail Application No. 5384 of
2020 (Abhishek Srivastava Vs. State of
U.P) by the Lucknow Bench of this Court.

iii)-
M.
Ravindran
Vs.
Intelligence
Officer,
Directorate
of
Revenue Intelligence, reported in AIR
2020 SC 5245.

11- Here, it is also pertinent to note
that learned counsel for the applicant
advanced his argument only on the issue of
right of default bail to the accused applicant
and did not press the bail application of the
applicant on its merit.

Submissions
on
behalf
of
opposite party.

12- Per contra, Shri Krishna Agarwal,
learned counsel appearing on behalf of the
prosecution/Union of India through Central
Bureau of Narcotics, Gwalior (opposite
party) refuting the aforesaid submissions of
learned counsel for the applicant submits
that:-

12.1- The applicant was arrested
on 22.10.2019 in connection with recovery
of
huge
quantity
of
contraband
of
commercial quantity for the offence under
Section 8/22 and 30 of the N.D.P.S. Act.
Period
of
180
days
prescribed
for
completion of investigation under Section
36A(4) of the N.D.P.S. Act was completed
on 19.04.2020, but before expiry of the said
period, the Apex Court on 23.3.2020
(supra) exercising power under Article 142
read with Article 141 of the Constitution of
India, ordered that a period of limitation in
all such proceedings, irrespective of the
limitation prescribed under the general law
or Special Laws whether condonable or not
shall stand extended w.e.f. 15th March
2020 till further order/s, which is still
operative.

12.2
-On
24.03.2020,
the
complete nationwide lockdown had been
declared by the Government of India vide
order dated 24.03.2020 for a period of 21
days w.e.f. 25.03.2020, considering the
several proactive preventive and mitigating
measures after declaring the Covid-19 as
pandemic by World Health Organization.
3 All. Rakesh Kumar Rathore Vs. Union of India
33
Thereafter, the said lockdown was further
extended on 14.04.2020 till 03.05.2020, on
01.05.2020 for two weeks and lastly it was
extended on 17.05.2020 till 31.05.2020.

12.3- It is submitted that on
08.06.2020, 01.07.2020, 01.08.2020 and
29.08.2020 unlock 1, 2, 3 and 4 were
enforced gradually to withdraw lockdown
as per the guidelines mentioned therein.

12.4 Much emphasis has been
given by contending that the month of
March 2020 to June 2020 was peak time of
spread of corona virus and at that time all
the efforts were being made for enforcing
guidelines laid down by the Government of
India
strictly
regarding
nationwide
lockdown maintaining social distancing,
etc. Various places of the state were also
declared hotspot and it was not allowed to
go there, therefore it was not possible at all
to complete the investigation, which
requires travel and physical intervention
with the persons, who were to be examined
in the case. It is submitted that on account
of the aforesaid reasons, the prosecution
could not file complaint and the application
for extension of time within 180 days
(before 19.04.2020).

12.5-It is further submitted that
after unlock-1, the prosecution has moved
an application dated 29.06.2020 seeking
extension of time for a period of four
months to complete the investigation,
because under Section 36A(4) of the
N.D.P.S. Act, there is a statutory provision
that if it is not possible to complete the
investigation within the said period of 180
days, special court may extend the said
period upto one year at the report of Public
Prosecutor indicating the progress of
investigation and specific reasons for
detention of the accused beyond the said
period of 180 days. It is pointed out that in
the application dated 29.06.2020 the
progress report of the investigation and the
specific reason of not completing the
investigation within 180 days has been
mentioned in Paragraphs 5 and 6 of the
application dated 29.06.2020, which are as
follows :

"5. It is submitted that the offence
involves
commercial
quantity
and
accordingly 180 days to conclude the
investigation has expired on 19.04.2020.
The investigation was underway with
sincere efforts to complete it within the time
limit of 180 days despite being voluminous,
meanwhile, it got halted due to nation-wide
lockdown on account of Corona virus
(COVID-19). In the given circumstances, it
was
not
possible
to
conclude
the
investigation by 19.04.2020. Looking at the
current outlook of COVID outbreak and
with ever emergence of new cases everyday,
it may take at least 4 more months to
become the situation conducive to complete
the investigation which requires travel and
physical intervention with the persons who
are yet to be examined in the case.
However, it is provided under Section
36A(4) of NDPS Act, 1985 that if it is not
possible to complete the investigation
within the said period of 180 days, the
Special court may extend the said period up
to one year on the report of the Public
Prosecutor indicating the progress of
investigation and specific reasons for
detention of the accused beyond the said
period of 180 days.

6. It is in the fitness of things and
interest of justice that time to conclude the
investigation may be extended for 4 months
considering the extraordinary situation in
the country owing to outbreak of COVID19."

12.6-The
application
dated
29.06.2020 of the prosecution under
Section 36A(4) of N.D.P.S. Act for
extension of time has been allowed vide
order dated 17.07.2020 of the trial court
34 INDIAN LAW REPORTS ALLAHABAD SERIES
granting four months further time to
complete the investigation and within said
period prosecution has filed the complaint
dated 17.08.2020 on 17.08.2020.

12.7-It is pointed out that the said
order dated 17.07.2020 granting four
months further time to the prosecution for
completing the investigation has become
final, as the same has not been challenged
by the applicant.

12.8-In view of the order dated
23.03.2020 of the Apex Court, extension
application
dated
29.06.2020
of
the
prosecution shall be treated within time.

12.9-Lastly, it is prayed that
under the facts and special circumstances
of this case as mentioned above, the
applicant is not entitled to be released on
bail on the ground of default bail under
Section 167(2) of the Cr.P.C., in the light of
order dated 23.03.2020 passed by the Apex
Court.

12.10-Learned counsel for the
opposite party heavily relied upon the
following order/judgments:-

i- Order dated 23.03.2020 passed
by the Apex court in Suo Motu Writ
Petition (C) No(s). 3/2020, In Re :
Cognizance for Extension of Limitation.

ii- Paragraph no.15 of Judgment
dated 08.05.2020 of the High Court of
Madras in the case of Settu Vs. State,
2020 (3) MLJ (Crl) 570,

iii- S. Kasi Vs. State Through
The Inspector of Police Samaynallur
Police Station, Madurai District, 2020
SCC OnLine SC 529.

13- Before delving into the matter, it
is useful to quote Section 167(2) of the
Cr.P.C. and Section 36A(4) of N.D.P.S. Act,
which are as follows :

"Section 167(2) of The Code Of
Criminal Procedure, 1973

(2) The Magistrate to whom an
accused person is forwarded under this
section may, whether he has or has not
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:

Provided that -

(a) the Magistrate may authorise
the detention of the accused person,
otherwise than in the custody of the police,
beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorise
the detention of the accused person in
custody under this paragraph for a total
period exceeding,-

(i)
ninety
days,
where
the
investigation
relates
to
an
offence
punishable with death, imprisonment for
life or imprisonment for a term of not less
than ten years;

(ii)
sixty
days,
where
the
investigation relates to any other offence,
and, on the expiry of the said period of
ninety days, or sixty days, as the case may
be, the accused person shall be released on
bail if he is prepared to and does furnish
bail, and every person released on bail
under this sub-section shall be deemed to
be so released under the provisions of
Chapter XXXIII for the purposes of that
Chapter;

(b) no Magistrate shall authorise
detention of the accused in custody of the
police under this section unless the accused
in produced before him in person for the
first time and subsequently every time till
the accused remains in the custody of the
police, but the Magistrate may extend
3 All. Rakesh Kumar Rathore Vs. Union of India
35
further detention in judicial custody on
production of the accused either in person
or through the medium of electronic video
linkage;

(c) no Magistrate of the second
class, not specially empowered in this
behalf by the High Court, shall authorise
detention in the custody of the police.

[Explanation
I.-For
the
avoidance of doubts, it is hereby declared
that, notwithstanding the expiry of the
period specified in paragraph (a), the
accused shall be detained in custody so
long as he does not furnish bail.]

[Explanation II.-If any question
arises whether an accused person was
produced before the Magistrate as required
under clause (b), the production of the
accused person may be proved by his
signature
on
the
order
authorising
detention or by the order certified by the
Magistrate as to production of the accused
person through the medium of electronic
video
linkage,
as
the
case
may
be:]..................."

"Section 36A(4) of the N.D.P.S.
Act

(4)
In
respect
of
persons
accused of an offence punishable under
section 19 or section 24 or section 27A or
for
offences
involving
commercial
quantity the references in sub-section (2)
of section 167 of the Code of Criminal
Procedure (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."

Discussion of judgments relied upon
by the parties.

14- Firstly, I shall deal with the
judgments relied on behalf of the applicant.

14.1-In the case of Sudhakar &
others (supra) the accused was arrested on
10.04.1984 for the offences punishable
under Sections 147, 148, 149 and 302 of
I.P.C.
The
period
for
completing
investigation within 90 days, had expired
on 08.07.1984, but charge sheet was not
submitted. On the next day of expiry of
period of 90 days i.e. on 09.07.1984, an
application was moved before the Judicial
Magistrate Ist of District Etawah under
Section 167(2) Cr.P.C. for grant of default
bail, but the said application was not
disposed of on 09.07.1984 and charge sheet
was submitted on 10.07.1984. The learned
Magistrate passed impugned order dated
13.07.1984 to the effect that he had taken
cognizance of the offence and in view
provisions of Section 173 (8) of the Cr.P.C.,
the accused were not entitled to bail. The
said order was challenged before the High
Court in Criminal Revision, in which the
High Court held that the Magistrate acted
in violation of proviso (a) to Section 167(2)
Cr.P.C. by postponing the consideration of
the application for bail till the charge sheet
was filed and till he had taken cognizance
of the case. Accordingly, revision was
allowed and application of the accused for
default bail was also allowed.

14.2-In the case of Abhishek
Srivastava (supra) the accused after arrest
was
taken
in
judicial
custody
on
16.01.2020 with passing of remand order
on 16.01.2020, thereafter the judicial
custody continued from time to time and
36 INDIAN LAW REPORTS ALLAHABAD SERIES
lastly the remand was extended on
11/12.03.2020 for a period of 14 days i.e.
25.03.2020.
Before
the
said
date,
nationwide lockdown was imposed on
24.03.2020 and the functioning of the
courts stood obstructed rather completely
closed expect for urgent work as per
directives issued by Hon'ble the Chief
Justice from time to time considering the
pandemic Covid-19 directing that all the
courts subordinate to the High Court,
Commercial Court, Motor Accident Claims
Tribunal
and
Land
Acquisition
Rehabilitation and Resettlement Authorities
across the U.P. shall remain closed till
further orders and remand and bail of
accused persons shall be done as per
holiday practice. Due to closure of courts
from 24.03.2020, no remand orders were
passed from 25.03.2020 to 26.06.2020 and
in the meantime period of 90 days expired
on 14.04.2020 and in absence of any
remand order since 25.03.2020, the accused
continued in jail till the filing of charge
sheet on 01.05.2020, and thereafter until
the rejection of default bail on 18.06.2020.
On the aforesaid facts, High Court held that
during lockdown period and irrespective of
the facts that the courts were closed,
remand matters were bound to be taken up
and wherever the indefeasible right of
personal liberty accrued to an accused
incarcerated in jail, he ought to have been
offered
default
bail
in
the
manner
prescribed under Section 167(2) of the
Cr.P.C. Accordingly, the court of Magistrate
was directed to release the accused
Abhishek Srivastava on default bail on
furnishing bail bonds to the satisfaction of
the court concerned.

14.3-In
the
matter
of
M.Ravindran
(supra),
the
issues
regarding default bail has been considered
by the Apex Court. Facts of that case were
that accused was arrested and remanded to
judicial custody on 04.08.2018 for the
alleged offence punishable under Section
8(c) read with Sections 22(c), 23(c), 25A
and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. After
completion of 180 days from the remand
date, that is, 31.1.2019, the accused filed
application for bail under Section 167(2) of
the Code of Criminal Procedure, on
1.2.2019 at 10:30 a.m. before the Trial
Court, Chennai on the ground that the
investigation was not complete and chargesheet had not yet been filed. During course
of hearing of bail application after
completion of argument of the counsel for
accused, complainant filed an additional
complaint against the accused on 1.2.2019
at 4:25 p.m. and sought dismissal of the
bail application on the said basis. On
5.2.2019 the trial court allowed the bail
application granting bail to accused on the
ground that the court has no power to
intervene with indefeasible right of accused
conferred on him by the legislative
mandate of Section of 167(2) Cr.P.C.
Complainant challenged the said bail order
before the High Court. The High Court
cancelled the bail order granted by the trial
court. The accused challenged the said
order of the High Court before the Apex
Court. The impugned judgment of the High
Court was set aside by the Apex Court
confirming the order of trial court granting
default bail to accused.

15- After going through the aforesaid
judgments relied upon by the learned
counsel for the applicant, I find that in case
of Sudhakar and others (supra) and
Abhishek Srivastava (supra), offence
against the accused was punishable under
Indian Penal Code, therefore, in both the
above cases the provisions of Section
167(2) of Cr.P.C. were applicable, in which
there is no provision for extension of
3 All. Rakesh Kumar Rathore Vs. Union of India
37
limitation period after 60 or 90 days,
therefore order dated 23.03.2020(supra) of
the Apex Court was not applicable in the
case of Abhishek Srivastava, whereas in
the present case offence is under N.D.P.S.
Act, therefore, provisions of Section
36(A)(4) of the N.D.P.S. Act is applicable
regarding limitation period for completing
investigation and there is provision for
extension of time also with the permission
of the Court concerned, therefore order
dated 23.03.2020 of the Apex Court is
applicable in the case in hand. As such,
both the aforesaid cases are distinguishable
on facts and law, hence not applicable
under the facts of the present case. So far as
third case M. Ravindran (supra) is
concerned, it is relevant to note that in the
said case though the offence against the
accused was under N.D.P.S. Act, but
limitation period of 180 days prescribed for
completing
the
investigation
already
expired on 13.01.2019, much before
coming
into
force
the
order
dated
23.03.2020 of the Apex Court, whereas in
the case in hand before expiry of limitation
period of 180 days (i.e. on 19.4.2020 ), the
order dated 23.03.2020 of the Apex Court
already came into force w.e.f. 15.3.2020,
therefore, said judgment is also not
applicable on the facts of this case.

16- Now I shall deal with the order/
judgments
cited
on
behalf
of
the
prosecution:-

16.1-Apex Court in Suo-Motu
order dated 23.03.2020 (as mentioned
above in paragraph no.3) has clearly
observed that "We are exercising this power
under Article 142 read with Article 141 of
the Constitution of India and declare that
this order is a binding order within the
meaning
of
Article
141
on
all
Courts/Tribunals and authorities".

In view of such observation, this
Court is of the view that it is equally
binding and applicable upon accused as
well as prosecution, if they were being
effected by limitation period provided
under Special Act, in any manner during
pandemic COVID-19/lockdown period.

16.2-In the case of Settu Vs.
State (supra), the offence against the
accused was under Sections 392 and 397 of
I.P.C. In the said case also period as
provided under Section 167(2) Cr.P.C. for
completing investigation was applicable.
The effect of aforesaid order dated
23.03.2020 of the Hon'ble Apex Court was
also considered by the High Court of
Madras. In the said case, the High Court
while granting bail to accused made
following observations in paragraphs no.14
& 15 of judgment.

Finding recorded in para no.14 is
applicable
to
such
cases,
in
which
limitation period for filing charge sheet is
governed by the provisions of Section
162(2) of Cr.P.C., whereas finding recorded
in para 15 is applicable for those cases, in
which limitation period is governed by any
Special Act like N.D.P.S. Act, which is
applicable in the case in hand.

"14. Personal liberty is too
precious a fundamental right. Article 21
states that no person shall be deprived of
his personal liberty except according to
procedure established by law. So long as
the language of Section 167(2) of Cr.P.C.
remains as it is, I have to necessarily hold
that denial of compulsive bail to the
petitioner herein will definitely amount to
violation of his fundamental right under
Article 21 of the Constitution of India. The
noble object of the Hon'ble Supreme
Court's direction is to ensure that no
litigant is deprived of his valuable rights.
But, if I accept the plea of the respondent
police, the direction of the Hon'ble
38 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court which is intended to save
the preserve rights would result in taking
away the valuable right that had accrued to
the accused herein.

15. Of course, the construction
placed by me will have no application
whatsoever in the case of certain offences
under certain special laws, such as
Unlawful Activities (Prevention) Act, 1967
and NDPS Act, 1985. For instance Section
36-A(4) of the NDPS Act enables the
investigation officer to apply to the special
court for extending the period mentioned in
the statute from 180 days to 1 year if it is
not possible to complete the investigation.
Thus,
under
certain
statutes,
the
prosecution has a right to apply for
extension of time. In those cases, the benefit
of the direction of the Hon'ble Supreme
Court made 23.03.2020 in Suo Motu Writ
Petition (Civil) No. 3 of 2020 will apply.
But, in respect of the other offences for
which Section 167 of Cr.P.C. is applicable,
the benefit of the said direction cannot be
availed."

16.3-In the case of S. Kasi
(supra), the aforesaid judgment dated
08.05.2020 of the High Court of Madras in
the case of Settu (supra) was further
considered by the Hon'ble Supreme Court.
In the said case finding recorded by the
High Court of Madras in Paragraphs 14 and
15 of judgment, in case of Settu v/s. State
has been approved by the Apex Court. The
relevant extract of Paragraphs 27 and 30 of
the said judgment are quoted herein below:

"27. There is one more reason
due to which the impugned judgment of the
learned Single Judge deserves to be set
aside. A learned Single Judge of Madras
High Court in Crl.OP(MD)No. 5291 of
2020, Settu v. the State, had already
considered the judgment of this Court dated
23.03.2020
passed
in
Suo
Moto
W.P(C)No.3 of 2020 and its effect on
Section 167(2) Cr.P.C. The above was also
a case of a bail where the accused was
praying for grant of default bail due to
non-submission of charge sheet. The
prosecution had raised objection and had
relied on the order of this Court dated
23.03.2020
passed
in
Suo
Moto
W.P(C)No.3 of 2020 claiming that period
for filing charge sheet stood extended until
further
orders.
The
submission
of
prosecution was rejected by learned Single
Judge. The learned Single Judge had made
following observations in paragraphs 14
and 15:-

"14. Personal liberty is too
precious a fundamental right. Article 21
states that no person shall be deprived of
his personal liberty except according to
procedure established by law. So long as
the language of Section 167(2) of Cr.P.C.
remains as it is, I have to necessarily hold
that denial of compulsive bail to the
petitioner herein will definitely amount to
violation of his fundamental right under
Article 21 of the Constitution of India. The
noble object of the Hon'ble Supreme
Court's direction is to ensure that no
litigant is deprived of his valuable rights.
But, if I accept the plea of the respondent
police, the direction of the Hon'ble
Supreme Court which is intended to save
and preserve rights would result in taking
away the valuable right that had accrued to
the accused herein.

15. Of course, the construction
placed by me will have no application
whatsoever in the case of certain offences
under certain special laws, such as
Unlawful Activities (Prevention) Act, 1967
and NDPS Act, 1985. For instance, Section
36-A (4) of the NDPS Act enables the
investigation officer to apply to the special
court for extending the period mentioned in
the statute from 180 days to 1 year if it is
not possible to complete the investigation.
3 All. Rakesh Kumar Rathore Vs. Union of India
39
Thus, under certain statutes, the prosecution
has a right to apply for extension of time. In
those cases, the benefit of the direction of the
Hon'ble Supreme Court made 23.03.2020 in
Suo Motu Writ Petition (Civil) No.3 of 2020
will apply. But, in respect of the other
offences for which Section 167 of Cr.P.C. is
applicable, the benefit of the said direction
cannot be availed."

30. Rajasthan High Court had
occasion to consider Section 167 as well as
the order of this Court dated 23.03.2020
passed in Suo Moto W.P(C)No.3 of 2020 and
Rajasthan High Court has also come to the
same conclusion that the order of this Court
dated 23.03.2020 has no consequence on the
right, which accrues to an accused on nonfiling of charge sheet within time as
prescribed
under
Section
167Cr.P.C.
Rajasthan High Court in S.B. Criminal
Revision Petition No. 355 of 2020 - Pankaj
Vs. State decided on 22.05.2020 has also
followed the judgment of learned Single
Judge of the Madras High Court in Settu v.
The State (supra) and has held that accused
was entitled for grant of the default bail.
Uttarakhand High Court in First Bail
Application No.511 of 2020 - Vivek Sharma v.
State of Uttarakhand in its judgment dated
12.05.2020
has
after
considering
the
judgment of this Court dated 23.03.2020
passed in Suo Moto W.P(C)No.3 of 2020 has
taken the view that the order of this Court
does not cover police investigation. We
approve the above view taken by learned
Single Judge of Madras High court in Settu v.
The State (supra) as well as the by the Kerala
High Court, Rajasthan High Court and
Uttarakhand High Court noticed above."

Conclusion.

17- After considering the submissions
of the learned counsel for the parties,
perusing the record and going through the
judgments cited on behalf of the parties as
well as legal position, this Court arrived at
following conclusions:-

17.1-There are two categories of
cases regarding period prescribed in law for
completing investigation, if accused is in
jail.
One
category
for
those
cases,
regarding which the period of 60 or 90 days
as the case may be, prescribed under
Section 167(2) Cr.P.C. are applicable and
another category of cases, which are
governed by the period provided under any
Special Act, like present case, in which
procedure prescribed under Section 36 A(4)
of the N.D.P.S. Act is applicable. A plane
reading of Section 167 Cr.P.C., it is also
clear that under Section 167 Cr.P.C. there is
no provision for seeking extension of
period of investigation, whereas under
Section 36A(4) of the N.D.P.S. Act,
Investigating Officer can apply to the
special court for extending the period
mentioned therein from 180 days to one
year, if it is not possible to complete the
investigation.