BINOD KUMAR NANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order dated 11.12.2003 passed by the learned Special Judge -cum -Additional Sessions Judge, jajpur in G.R. Case No. 538 of 2003 rejecting the prayer of the Petitioner for grant of bail under Section 167 (2) of the Code of Criminal Procedure.

(2.) THE case of the Petitioner is that on 24.5.2003 at about 4.40 P.M. 126 grams of brown sugar was seized from the possession of the Petitioner. On the very same date at 6.30 P.M. he was arrested. On 25.5.2003 the Petitioner was forwarded to the court of the learned Additional Sessions Judge, Jajpur for commission of offences under Sections 21 and 22 of the N.D.P.S. Act and was remanded to the jail custody. After expiry of 60th day, since charge -sheet was not filed, a petition was filed under Section 167 (2) of the Code of Criminal Procedure on the 61 (sixty one) days i.e., on 24th July, 2003 for grant of bail. On 25th July, 2003 at about 11.30 A.M. charge -sheet was filed. Since on expiry of sixty days the Petitioner had moved for bail and by that time charge sheet had not been filed, the pet prayed for compulsory bail under the aforesaid provision of the Code of Criminal Procedure. The learned Special Judge rejected the petition relying on a decision of the Apex Court holding that if the date of remand is excluded, the Petitioner is not entitled to bail under Section 167 (2) Code of Criminal Procedure

(3.) IN the present case, the Petitioner was remanded to jail custody on 24th May, 2003 and the period of sixty days expired on 23rd of July, 2003. On 24th July, 2003, it appears that the Petitioner had exercised his right under the proviso to Section 167 (2), Code of Criminal Procedure for grant of bail and admittedly by that time the charge sheet had not been submitted and only on 25th July, 2003 charge sheet was submitted. Since the Petitioner had filed the petition after expiry of sixty days and admittedly the charge sheet was filed on the next day, the right of the Petitioner to be released on bail under the proviso to Section 167(2) Code of Criminal Procedure cannot be denied.