Life Without Personal Liberty Is Like A “Car Without Engine”; “Bird Without Wings” & “Legislation Without Justice”- Calcutta High Court
|The Calcutta High Court remarked that the Right to Personal Liberty that every citizen has, is the most valuable and important fundamental right after the Right to Life.
The Court remarked thus in an Application for bail filed by an accused who was arrested for the alleged commission of offence under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
A Division Bench comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray emphasised, “The right to personal liberty that every citizen has, is probably the most valuable and important fundamental right after the right to life. Life without personal liberty is like a car without the engine, a bird without wings, legislation without justice. As Kahlil Gibran wrote in his novel “The Vision”, “life without liberty is like a body without spirit” It there be any confusion in any matter touching the personal liberty of a person, the Court should lean in favour of a construction which protects such right rather than negates it.”
The Bench observed that after expiry of 90 days or 60 days contemplated in Section 167 of the Criminal Procedure Code, 1973 (CrPC), and after expiry of 180 days or one year contemplated in Section 36A (4) of the NDPS Act, the Court loses the power, jurisdiction or authority to detain an accused in either police custody or judicial custody, if in the meantime a valid charge-sheet has not been filed by the investigating agency.
Advocate Angshuman Chakraborty represented the Petitioner/Accused while Advocate Anand Keshari represented the Respondent/State.
Facts of the Case
Allegedly, 150 bottles of phensedyl cough syrup, containing codeine phosphate was seized from the Petitioner-accused. In June 2024, i.e., 84th day after his arrest, the Investigating Agency filed a chargesheet but without the FSL (Forensic Science Lab) report of the seized substance suspected to be a contraband item. In September 5 i.e., after 172 days of his arrest, his prayer for bail was rejected by the Trial Court. On 179th day after his arrest, he affirmed the Bail Application before the Oath Commissioner, Calcutta High Court, and thereafter, filed the same.
On 200th day, the Investigating Officer (IO) filed a supplementary chargesheet with the FSL report which confirmed the presence of narcotics in the seized goods. The Petitioner’s counsel submitted that the Bail Application was pending before the High Court when the supplementary chargesheet was filed along with the FSL Report. It was further submitted that irrespective of whether or not the accused filed his bail application before the High Court after expiry of the statutory period of 180 days or prior thereto, upon expiry of 180 days, it was incumbent upon the Court to make it known to the accused that he is entitled to statutory bail if he is prepared to and in fact furnishes bail bond.
Reasoning
The High Court in the above regard, noted, “… it is clear that in matters touching on personal liberty of a citizen, the Courts ought not to adopt a technical approach. Section 167 authorizes the Magistrate to whom an accused person is forwarded, to detain him for a maximum period of 90 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; and for a maximum period of 60 days, where the investigation relates to any other offence.”
The Court added that the proviso to Section 167(2) CrPC makes it clear that on the expiry of the period of 90 days, or 60 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.
“Hence if the period for completing the investigation in an NDPS Case involving commercial quantity of narcotics is not extended by the Special Court, the investigating agency is under a statutory mandate to complete the investigation within 180 days from the date of arrest of the accused person and file the charge-sheet or challan within the said period. If the same is not done, the concerned Magistrate loses the authority to remand the accused persons. In other words, the Magistrate ceases to have the power to direct continuation of the accused person in custody”, it further observed.
The Court also took note of the fact that the right to obtain default bail had not accrued in favour of the accused on the 179th day after his arrest, however, during the pendency of the Petition, on the 181st day after his arrest, the right to obtain statutory bail accrued in his favour.
“His application for bail was already pending on that date. I am of the view that the court, the petitioner’s advocate as well as the advocate for the State were all under an obligation to apprise the petitioner that such a right had arisen in his favour and that if he was willing to furnish bail and in fact furnishes bail, he is entitled, as a matter of right, to be released from judicial custody. The same does not appear to have been done”, it added.
The Court said that the Petitioner’s offer to furnish bail was pending from the 179th day after his arrest and 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. … Each moment of the accused person’s detention after expiry of the time periods indicated above, becomes illegal, having no sanction of law”, it observed.
Moreover, the Court reiterated that default bail can be granted even on oral prayer and no written application need to be made.
“If the Court is unable to take up an application for bail for whatever reason, and during pendency of the application a valid charge-sheet is filed, the same cannot adversely affect the indefeasible right that arose in favour of the accused person and which he has exercised by filing an application. I am inclined to treat this application as one for default bail and allow the application”, it concluded.
The Court, therefore, directed that the accused 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 Special Court (NDPS Act).
Accordingly, the High Court allowed the Application and granted bail to the accused.
Cause Title- Rajiv Mondal @ Rajib v. The State of West Bengal (Case Number: CRM (NDPS) 1509 of 2024)
Appearance:
Petitioner: Advocate Angshuman Chakraborty
Respondent: Advocates Anand Keshari and Jonaki Saha.