A. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 437 -- Default bail – Condition to deposit Rs.8,00,000/- – Permissibility of – Held, only requirement for getting the default bail/statutory bail u/s 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be -- And within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail -- Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C. -- Condition imposed by the High Court is unsustainable and deserves to be quashed and set aside – Condition quashed and set aside.

(Para 9-11)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) -- Default bail -- Condition directing the appellant to report before the concerned police station daily at 10:00 a.m., until further orders, for interrogation is concerned is unsustainable, as it is too harsh -- Instead, condition which can be imposed is directing the appellant to cooperate with the investigating officer in completing the investigation and to remain present before the concerned police station for investigation/interrogation as and when called for, and on breach the investigating officer can approach the concerned court for cancellation of the bail – Condition modified by Supreme Court.

(Para 10)

Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 437, 439 – Statutory/ Default bail granted – Challan filed before submitting bail bonds – Cancellation of bail -- Before petitioner could furnish his bail bonds the challan was filed at about 5.00 p.m., following which, the statutory bail already granted was cancelled vide the impugned order – Impugned order set aside and a direction passed upon the Ld. Court below to accept the bail bonds, if any, in compliance of the previous order granting him statutory bail – Held, cancellation can only be ordered on merits of the case u/s 437 or 439 of the Cr.P.C., and not merely on account of the fact that challan had been presented by the I.O after the said order was passed.

(Para 2-9)

A. Binding precedent -- Power of smaller Bench to say ‘per incuriam’ – A judgement may be held to be per incuriam in case it failed to notice an earlier binding precedent which covered the field -- Even in such a situation a smaller Bench cannot say that the judgement of a larger Bench is per incuriam -- The only course available to it is to make a reference to the larger Bench.

(Para 10)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167, 173 -- NDPS case – Challan without report of the Chemical Examiner/Forensic Science Laboratory -- Incomplete challan -- Default bail -- By virtue of the doctrine of stare decisis, the Single Bench judgements in Akash Kumar alias Sunny (Law Today Live Doc. Id. 14977) and Shankar (CRM No. M-44412 of 2019/20th December 2019) are binding as they lay down a proposition of law although at variance with the law laid down by the Division Bench in Ajit Singh alias Jeeta (Law Today Live Doc. Id. 14121) -- Smaller Bench could not have declared the judgement of a larger Bench to be per incuriam -- Judicial discipline demands that a reference be made to a Division Bench regarding the validity and correctness of the aforementioned Single Bench judgements -- File sent to Hon'ble the Chief Justice with a request to constitute a Division Bench for consideration of this matter -- Meanwhile, direction given that petitioner be released on bail

(Para 11,12)

Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 439 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 15 -- 50 kg of Poppy husk weighed with bag -- Default bail – Regular bail -- In case the poppy husk had been weighed separately from the bags wherein it was contained, it would not have come under the commercial quantity -- Challan ought to have been presented within a period of 60 days, considering the fact that the recovery was not of commercial quantity, which has not been done -- There is delay in the presentation of challan – Bail allowed.

(Para 5-7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) -- Default bail – Delay in furnishing bail bonds – Effect of -- Petitioner did “avail of” his right u/s 167(2) of the Code and furnished personal bail bond with surety, which was accepted and attested by the Court, he would be deemed to have been released from custody -- Petitioner was not released because two other cases were pending against him – Surety withdrew the surety furnished by him -- Court permitted the petitioner to furnish fresh bail bond with surety -- Since he was in custody in other cases, therefore, he did not furnish the fresh bail bond with surety – After granted bail in other cases, petitioner requested the Court to accept the personal bail bond with surety as directed vide earlier order, which was declined – Held, mere delay in furnishing personal bail bonds/surety cannot visit the petitioner with adverse consequences and the order granting bail u/s 167(2) of the Code does not cease to exist or comes to an end or stand eclipsed -- Petitioner is directed to furnish personal bail bonds with surety and thereafter ordered to be released on bail.

(Para 11)

B. Constitution of India, Article 141 – Judgment passed by Supreme Court of India -- Courts below ignoring the judgment by saying not applicable, without discussion – Permissibility of -- Ld. Court below, in the order has taken notice of the judgment, but refuses to follow the same by observing that “these judgments are not applicable to the facts and circumstances of the present case” – Held, a judgment passed by the Hon’ble Supreme Court is binding on all Courts in the country under Article 141 of the Constitution of India -- No doubt, the ratio decidendi laid down in a judgment is binding and not obiter dicta -- However, before distinguishing judgment, the Court is required to analyse that what is the ratio laid down in the judgment and thereafter, proceed to explain the same -- Manner in which the ld. Court below has ignored the judgment of the Hon’ble Supreme Court is not appreciable.

(Para 11)

Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) – Prevention of Corruption Act, 1988 (49 of 1988), Section 7, 7A -- Default bail – Right of – Accused on interim Bail – Effect of -- Petitioner remaining behind bars for a period of less than two weeks till date cannot cry foul and ask for bail in terms of Section 167(2) Cr.P.C.

(Para 9)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) – Default bail – Period of challan to be reckoned -- It is now settled that the word ‘custody’ occurring in the proviso to Section 167(2) Cr.P.C. encompasses police custody as well as judicial custody.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173  – Default bail – Language of the proviso to Section 167(2) Cr.P.C. is clear -- If a challan is not presented within the said period, the accused gets an indefeasible right to bail which cannot be defeated by filing the challan after 90 days but before the release of an accused on bail.

(Para 9)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) – Default bail – Petitioner not arrested kept in Column no. 2 -- Evidence necessary for commencement of trial collected by the investigating agency -- Warrants of arrest had been requested for – Held, it is not essential for a person to be arrested before a challan can be presented against him -- Only requirement for applicability of the proviso to Section 167(2) Cr.P.C. is that investigation should be pending against the petitioner -- Trial Court dismissed the application for default bail – No merit in the revision petition, the same is dismissed.

(Para 1, 3, 10-14)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) – Default bail – Covid-19 restriction – Effect of -- Neither eclipsed the time prescribed u/s 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.

(Para 25, 26)

B. Principle of Comity of Courts  -- All Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts -- A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram -- A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have -- In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment.

(Para 33)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22(C), 36(A) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173(2) -- Challan without Chemical Examiner report – Default bail – Right of --  Held, State is bound to annex the report of Chemical Examiner along with the challan u/s 173 Cr.P.C. -- On the other side, if the report is not accompanied with the challan, then the prosecution can seek time for placing on record the said report – When the first application for grant of default bail was filed, no application for extension of time was made by the prosecution – Held, petitioner deserves the concession of bail under the provisions of Section 167 (2) Cr.P.C., Ajit Singh’s case CRR No.4659 of 2015 = Law Today Live Doc. Id. 14121 relied.

(Para 2-6)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 36(A) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173(2) -- Challan without CFSL report – Default bail – Right of -- Report u/s 173 (2) of the Cr.P.C. was filed by the police before expiry of the period of 60 days without the CFSL report, which cannot be said to be incomplete -- Accused is not entitled to bail u/s 167 (2) of the Cr.P.C. on the ground of filing of incomplete report.

(Para 29)

Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 21, 36(A) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173(2) -- Challan without Chemical examination report – Default bail – Right of -- It would not be appropriate to hold that in absence of report of the chemical examiner from the FSL or such like agencies, the accused is entitled to default bail -- Held, attention of the Division Bench in Ajit Singh @ Jeeta and another, Law Today Live Doc. Id. 14121 was not drawn to two Supreme Court judgments (Narender Kumar Amin’ case, (2015) 3 SCC 417 and Abdul Azeez P.V.’s case, (2014) 16 SCC 543, interpreting this very question of default bail in absence of report from FSL or similar agencies -- Held, that the judgment passed by the Hon'ble Division Bench is “per incuriam” -- No ground to release the petitioner on bail is made out.

(Para 6-10)

Companies Act, 2013 (No. 18 of 2013), Section 212(1)(c), (6), (15) – Limited Liability Partnership Act, 2008 (6 of 2009), Section 43(2), (3)(c)(i) – Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 309 – Custody of 60 days – No-cognizance taken by Court – Power of remand – Default bail – Held, section 309 Cr.P.C., would come in to operation only after taking cognizance -- It is undisputed that remand cannot be beyond 60 days u/s 167 Cr.P.C. and further remand could only be at post cognizance stage -- Petitioners are lying incarcerated in custody beyond the period of 60 days without the trial Court having taken cognizance and the petitioners, in such circumstances, are entitled to statutory bail, it being their indefeasible right – Petitioners are ordered to be released on bail.

(Para 1, 18-24)

Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 438 -- Indian Penal Code, 1860 (45 of 1860), Section 420, 465, 467, 468, 471 – Default bail given – New sections/offences added – Anticipatory bail applied -- Petitioner was given benefit of bail u/s 167(2) Cr.P.C. as challan was not presented against him – Main case of the prosecution remains the same regarding disproportionate assets – Held, if some other offences have been added in the FIR, even then, the petitioner is not required for further interrogation purposes etc. – Petition allowed, in the event of arrest, the petitioner be released on bail in newly added Sections 420, 465, 467, 468 and 471 IPC.

(Para 6-8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173 – NDPS Matter – Incomplete challan – Final report not within prescribed time -- Default bail – Right of – Although the report u/s 173 Cr.P.C was filed by the Police, however, the FSL report was not filed along with the police report; to indicate the fact that the material recovered from the petitioner was, in fact, the poppy husk – Trial Court is directed to release the petitioner on bail pending trial; on his furnishing bonds/sureties to the satisfaction of the trial Court.

(Para 2-5)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 173 – NDPS Matter – Chemical Examination Report – Requirement of -- Chemical Examiner's report is an essential; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act.

(Para 25-28)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 36-A(4) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2), 173 -- NDPS Matter – Investigation Report -- Chemical Examination Report – Default bail – Right of -- It is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan -- If it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of status of investigation with a prayer for extension of time to the satisfaction of the Court.

(Para 26)

Indian Penal Code, 1860 (45 of 1860), Sections 420, 406, 467, 468, 471, 506  -- Code of Criminal Procedure, 1973 (2 of 1974), Section 319, 437(6) – Magistrate Trial -- Trial not concluded in 60 days – Right to bail -- Prosecution applied u/s 319 Cr.P.C to the trial Judge and by now two adjournments have been granted for arguments on the said application -- Provision appears to be mandatory, as is clear from the language used in sub-section 6 of Section 437 Cr.P.C. -- 60 days is already over since the first date of taking the case, the petitioner would be entitled to grant of bail -- Petition allowed.

(Para 1-4)