Common Order:

1. The instant petitions under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) have been filed by the State / Directorate of Revenue Intelligence seeking cancellation of the bail granted to the Respondents / Accused Nos.3 and 4 under Orders dated 20.09.2024 in Crl.M.P.Nos.1256 and 1257 of 2024 in NDPS S.C.No.51 of 2024 by the learned Special Sessions Judge for trial of the cases under the NDPS Act-cum-I Additional District and Sessions Judge, East Godavari, Rajamahendravaram.

2. As the Complainant and Accused Nos.3 and 4 in these petitions relate to the same case, for ease of understanding, they are disposed of by this common order.

3. The case of the prosecution, in epitome, is that, on 15.02.2024 at about 20.45 hours, the Officers of Directorate of Revenue Intelligence, his staff and mediators conducted surveillance on NH-16 road towards Vijayawada on Chennai-Kolkata Highway, near new Swagat Hotel, Dhaba-2, Godavari 4th Bridge, Diwancheruvu, Rajamahendravaram, noticed a water tanker attached with a tractor bearing No.AP 05 CB 1639 with two persons and also two other persons on a Bajaj Pulsar motorcycle closely escorting the said tractor, who are Accused Nos.1 to 4 and intercepted them. On search, they found 790.73 kgs of Ganja and seized the same along with the vehicles under the cover of mediators’ report.

4. Heard Ms.Santhi Chandra, learned Senior Standing Counsel for State / DRI and DGGI and Sri Duggirala Subhash, learned counsel for Respondents / Accused Nos.3 and 4.

5. Learned Senior Standing Counsel for State / DRI and DGGI would submit that the investigation in the present case has been completed and charge sheet has also been filed before the trial Court on 12.08.2024, which is well within the statutory period. It is further submitted that, certain minor objections raised during scrutiny, were also complied with and the charge sheet was also numbered as NDPS S.C.No.51 of 2024. However, the learned trial Judge, considering the submission of the learned Special Public Prosecutor that charge sheet was not filed even after lapse of statutory period, had granted statutory bail to Accused Nos.3 and 4 by holding that charge sheet was not filed even after lapse of 180 days and also no application under Section 36A(4) of NDPS Act has been filed seeking extension of time for filing charge sheet. It is submitted that minor procedural irregularities cannot be used as a basis to grant bail in serious cases involving commercial quantities of narcotics. It is further submitted that the learned trial Court considered the date of representation of the charge sheet as the actual filing date and granted bail on the premise that the charge sheet was not filed within the statutory period.

                  Learned Senior Standing Counsel would further submit that, prima facie case is made out against Accused Nos.3 and 4 and huge quantity of contraband i.e., 790.73 kgs of Ganja was also seized from their possession.

                  It is argued that, in view of the embargo as contained in Section 37 of NDPS Act, Accused Nos.3 and 4 cannot be granted bail. It is further submitted that Section 167(2) of Cr.P.C has no application in the matters pertaining to the offences under NDPS Act. It is submitted that the severity of the crime and the potential impact of the seized contraband on the society must be considered while granting bail to the Accused in these types of cases.

                  Learned Senior Standing Counsel would further submit that Accused Nos.1 and 2 in the present case filed Crl.M.P.No.1039 of 2024 before the trial Court seeking regular bail and the same was dismissed vide Order dated 09.07.2024. Thereafter, Accused Nos.1 and 2 had approached this Court by filing Crl.P.No.5439 of 2024 seeking bail, which was allowed vide Order dated 01.10.2024 by holding that they were not produced before the competent Magistrate within 24 hours. The same was challenged by the State by way of Special Leave Petition before the Hon’ble Supreme Court of India, which is pending consideration.

                  Learned Senior Standing Counsel further contends that the magnitude of profit involved in narcotics trafficking provides strong incentives for continued criminal activity. In view of the role played by Accused Nos.3 and 4 in the alleged crime, there is every possibility of hampering the investigation and tampering with the prosecution evidence, if they are released on bail. Learned Senior Standing Counsel finally prays for cancellation of the statutory bail granted to Accused Nos.3 and 4. In support of their contentions, learned Senior Standing Counsel has placed reliance on the judgments of the Hon’ble Supreme Court in Superintendent, Narcotics vs. R.Paulsamy((2000) 9 SCC 549), Customs, New Delhi vs. Ahmadalieva Nodira(2004 (166) ELT 302 (SC)) , Durand Didier vs. Chief Secretary, Union Territory of Goa(1989 SCR (3) 1025), State of Punjab vs. Baldev Singh(Crl.Appeal No.396 of 1990), State of Kerala vs. Rajesh(2020 SCC OnLine SC 81).

6. Per contra, learned counsel for Respondents / Accused Nos.3 and 4 would submit that the right to statutory bail under Section 167(2) Cr.P.C. is an indefeasible right which accrues when a valid charge sheet is not filed within the prescribed period. It is contended that a defective or incomplete charge sheet returned during scrutiny cannot be treated as a valid filing, and therefore the trial Court rightly considered the date of representation and taking the charge sheet on file as the relevant date.

                  It is further submitted that the prosecution cannot defeat the valuable statutory right of the Accused by filing an incomplete charge sheet merely to overcome the limitation period. Learned counsel would also submit that the embargo under Section 37 of the NDPS Act does not apply to cases of statutory bail. Once the right to default bail accrues, the gravity of the offence or the quantity of contraband cannot be a ground to deny such relief. Since the investigation has already been completed and the charge sheet has been filed, the apprehension of tampering with evidence or interfering with the investigation is unfounded. Learned counsel would submit that liberty may be given to Accused Nos.3 and 4 to file a regular bail application before the trial Court.

7. This Court has considered the rival submissions submitted on both sides and perused the material placed on record. It is not in dispute that the charge sheet in the present case was presented before the trial Court on 12.08.2024, which is within the statutory period prescribed under law. The record further discloses that certain minor objections were raised during scrutiny and the same were subsequently complied with, pursuant to which the charge sheet was taken on file on 11.09.2024 and numbered as NDPS S.C.No.51 of 2024. Whereas, the impugned orders were passed on 20.09.2024. However, a bare perusal of the impugned orders disclose that the Special Public Prosecutor before the trial Court, represented that the charge sheet was not filed even after lapse of the statutory period.

8. The Hon’ble Supreme Court in catena decisions had categorically held that the indefeasible right of an Accused to seek statutory bail under Section 167(2) Cr.P.C which is a fundamental right under Article 21, exists only when the Police fails to file the chargesheet within the statutory period. In the present case, the police report filed on 12.08.2024 which is before the expiry of the statutory period of 180 days. It is also well settled principle of law that, once the charge sheet is presented before the Court within the statutory period, the mere return of the same during scrutiny for compliance of certain procedural defects cannot be construed to mean that the charge sheet was not filed within time.

9. It is pertinent to mention that, in similar circumstances, this Court, in State vs. Balaji Govindappa(2025 SCC OnLine AP 3904) while dealing with the issue of cancellation of bail framed the point as to Whether an Accused is entitled to default bail under proviso to Section 187(3)(ii) of BNSS when the chargesheet, though filed within the statutory period, is returned on certain defects, which are subsequently complied?. The said order was carried to the Hon’ble Supreme Court of India by way of a Special Leave Petition and the same was dismissed. This Court, while answering the above issue, categorically held as follows:

                  “81. In Velinedipurnam (supra), a Division Bench of the then Hon’ble High Court of Andhra Pradesh, dealt with a reference in context of Section 173(2) and (5) as to whether filing of incomplete charge-sheet within 60/90 days would enable the accused to seek for his release from custody. It was observed as follows;

                  “5. If all the necessary details as contemplated under S.173(2), Cr.P.C. are not disclosed in the police report in the first instance, but they are furnished at a later date, perhaps it is for the Court to consider the probative value of those details furnished later during the trial of the case, but to say that the police report filed with certain omissions or gaps is not a valid report contemplated under S. 173(2) is reading something more into the section. Consequently we hold that non-filing of all the enclosures under S. 173(5) along with the report filed under S. 173(2) is not a ground to release the accused on the premise that full charge-sheet is not filed within the stipulated time.”

                  (emphasis supplied)

                  111. It is necessary to refer to the decision rendered by a Division Bench of the Composite High Court of Andhra Pradesh in Venkatarayanakota Krishnappa (supra), which dealt with a reference on the point whether the charge sheet which was filed within ninety days, but was returned for compliance of certain technical objections of not filing the scientific experts report is a proper compliance under section 173 Cr.P.C. and whether the same confer any right on the accused to seek bail as a matter of right as required under Section 167 Cr.P.C. It was observed by the Division Bench that reports which are pending with the Science Laboratory are not within the control of the Investigating Agency and the chargesheet filed therein having satisfied the requirements under Section 173(2) is sufficient compliance to extinguish the indefeasible right of statutory bail. It was also observed that a chargesheet filed containing the particulars mentioned in Section 173 (2) is valid, irrespective of the fact that it did not contain some of the documents as required under Section 173 (5) as they can be produced at a later stage by supplying copies to the Accused, with the permission of the Court.

                  112. A Coordinate Bench of this Court in Anantha Satya Udaya Bhaskara Rao v. State of Andhra Pradesh71, dealt with a case wherein the petitioner sought default bail in a case under Sections 302, 201, and 34 of the IPC, along with Sections 3(1)(r), 3(1)(s), and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. His plea for default bail was rejected by trial Court on the ground that the police had filed chargesheet within the statutory period in compliance with Section 173(2) Cr.P.C., and the mere non-filing of the scientific expert’s report did not entitle the petitioner to default bail under Section 167(2) Cr.P.C. This Court upheld this view, holding that the charge sheet filed was complete in substance, being sufficient for the concerned Court to take cognizance of the offences.

                  113. A learned Single Judge of the Kerala High Court in Kamalaksha v. Sub Inspector of Police and Another, observed that when a Police Report or Charge Sheet contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure of compliance of Section 173(5) Cr.P.C. just because the scientific reports have not been produced along with the Charge Sheet filed by the Police Officer. It was also observed that the question as to whether the prosecution has adduced sufficient evidence to establish its case will be a matter to be decided at the close of the trial and not when cognizance is taken of the offence alleged.”

10. In the instant case, the learned trial Court, appears to have granted statutory bail to the Petitioners on the premise that the date of representation of the charge sheet, is the relevant date for the purpose of Section 167(2) Cr.P.C. Though the charge sheet is represented after curing the defects pointed out, beyond the period mentioned in the proviso to Section 167(2) Cr.P.C, it does not entitle the Accused to get default bail, when the charge sheet was originally filed within time. The filing of the charge sheet within the prescribed period having been established, the right of statutory bail did not accrue to Accused Nos.3 and 4.

11. It is also relevant to note that the present case involves seizure of a huge quantity of contraband i.e.,790.73 kgs of Ganja and the allegations disclose serious offences under the NDPS Act. In such circumstances, the learned trial Court ought not to have granted statutory bail on the basis of procedural irregularities relating to scrutiny of the charge sheet.

12. In view of the foregoing discussion, this Court is of the view that the statutory bail granted to Accused Nos.3 and 4 by the learned trial Court is unsustainable and is liable to be set aside.

13. Accordingly, the Criminal Petitions are allowed and the Orders dated 20.09.2024 in Crl.M.P.Nos.1256 and 1257 of 2024 in NDPS S.C.No.51 of 2024 by the learned trial Court, are set aside. The statutory bail granted to Accused Nos.3 and 4 stands cancelled. The Respondents / Accused Nos.3 and 4 are directed to surrender before the trial Court within one week from the date of receipt of copy of this order, failing which the trial Court shall take appropriate steps in accordance with law to secure their presence. Accused Nos.3 and 4 are at liberty to file application before the trial Court seeking regular bail.

As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed.