Bail and anticipatory bail

Default bail application under Section 167(2) CrPC in DRI Customs case

Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.

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IN THE COURT OF MS. Presiding Magistrate's name, LD. A.C.M.M., Court complex / district COURTS, NEW DELHI

BAIL APPLICATION NO. Bail application number OF 20Year (last two digits)

IN THE MATTER OF :-

DRIVERSUS Applicant / accused's name

File No. DRI file number

U/s: 132/135 Customs Act

In J.C. since Date of judicial custody

DEFAULT BAIL APPLICATION UNDER SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE ACCUSED / APPLICANT, NAMELY Applicant / accused's name, FOR GRANT OF DEFAULT BAIL.

MOST RESPECTFULLY SHOWETH :-

I.THE ACCUSED HEREIN DESERVES IMMEDIATE RELEASE FROM CUSTODY AS HIS DETENTION IS WITHOUT ANY LEGAL BASIS / LEGAL POWER:

That the present Applicant/Accused, namely, Applicant / accused's name, is a peace-loving and law-abiding citizen of India. The Applicant prays for immediate release from custody on bail, since, without prejudice to the other legal grounds, the Accused has been retained in illegal custody since Date from which custody became illegal till date without any legal sanction. The continuation of the present custody of the Accused is per se arbitrary and illegal in light of the mandate of law and settled judicial pronouncements:

A.The Accused has been in illegal custody since Date from which custody became illegal without even a legal order of remand:

Admittedly, the Accused has been in custody since Date from which custody became illegal; the period of 60 days has expired, and thus no extension of custody could have been granted after Date from which custody became illegal. It is settled law that a Magistrate, after the expiry of the '60 days' period enshrined under Section 167 CrPC, cannot extend the custody of the Accused under the said provision. Therefore, any further orders of remand are admittedly without any legal mandate and legal power.

B.Without prejudice, the custody after Date from which custody became illegal cannot even be said to be a power exercised under Section 309(2) CrPC, as cognizance has not yet been taken by the Ld. Magistrate:

Admittedly, the charge-sheet has not been filed till date, and the Court has not taken cognizance in the said matter. It is settled law that the power of remand under Section 309(2) can be exercised only after the Magistrate takes cognizance. Admittedly, the present case was fixed for further process on Date from which custody became illegal, and till date cognizance has not been taken.

C.The legal position mandating immediate release of the Accused after the expiry of the 60 days period is no more res integra and has been succinctly summarised by the Hon'ble Delhi High Court in 'Nitin Nagpal vs. State' [2006 (90) DRJ 745].

II.DEFAULT BAIL - THE INDEFEASIBLE RIGHT OF THE ACCUSED:

Section 167(2) CrPC, which deals with the issue at hand, reads as under:

"(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 Chapter number 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 is 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 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:

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution."

III.BRIEF FACTS OF THE CASE AS ALLEGED IN THE FIR / THE PROSECUTION'S VERSION QUA THE FIR:

That on Date of search / detention at office, certain officials reached the Applicant's residence and searched his house. When they did not find any illegal document at his house, they brought him to their office at Office where the applicant was detained, where the Applicant was tortured till 10 pm, and his wife was shown to be arrested in the case and forced to tender an inculpatory / wrong statement. The statement had already been typed and printouts taken by the officers, and the Applicant was forced to sign under the pressure that, if he did not sign, his wife would be implicated in the present case and other cases, without going through the contents thereof, and was also forced to sign certain other documents. He was detained at the said office from Date of search / detention at office to Date of end of detention at office and thereafter the Applicant was produced before the Ld. Duty Magistrate. The Applicant was threatened by the officers/I.O. that if he opened his mouth before the Ld. Judge, he would be behind the bars, and the same thing happened on Date of production before the Ld. Judge, when he was produced before the Ld. Judge.

That the residence of the Applicant was raided but nothing incriminating was recovered during the search. The Applicant had already told the officers that he was not aware of the subject consignment or any other information, and there is no other evidence to even remotely suggest the involvement of the Applicant in the alleged offence.

LEGAL GROUNDS:

IV.WITHOUT PREJUDICE AND EVEN OTHERWISE, THE ACCUSED HEREIN DESERVES BAIL ON LEGAL GROUNDS:

A.Without prejudice, admittedly, the charge-sheet has not been filed and no ground has been buttressed in the status report which warrants the retention / continuation of the Applicant's custody:

Without prejudice to the fact that the present custody of the Applicant is without any legal power, the retention of the Applicant's custody is not advocated on the ground that any further recovery is required from the Applicant. Therefore, no useful purpose would be served in keeping the Applicant in custody, and the same would tantamount to unjustified incarceration.

B.That the Applicant/Accused was arrested on Date of judicial custody and was remanded to judicial custody on Date of judicial custody, and since then the Applicant/Accused has been in custody, i.e., for a period of more than 60 days; there is no further requirement, and no purpose would be served by keeping the Applicant/Accused in custody. Admittedly, the Applicant has been under illegal detention / illegal custody since Date from which custody became illegal and deserves immediate release on bail.

C.That the DRI officers are not proper officers, as held by the Hon'ble Supreme Court in the case of Cannon India Pvt. Ltd. vs. Commissioner of Customs on 09.03.2021, and hence all the proceedings in the instant case, including the investigation and arrest of the Applicant, are a nullity in the eyes of law.

D.Without prejudice, admittedly, this is a case where the indulgence of this Court is sought for the immediate release of the Accused, namely, Applicant / accused's name, as the detention of the Accused in custody is illegal in light of the settled judgment passed by the Hon'ble Delhi High Court in the matter titled as Nitin Nagpal vs. State (2006 (90) DRJ 745):

"In Natabar Parida vs. State of Orissa, the Supreme Court observed that the law as engrafted in proviso (a) to Section 167(2) and Section 309 of the Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. The Court observed that the command of the Legislature in proviso (a) is that the accused has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the stipulated period (60 days or 90 days, as the case may be) even if the investigation is pending. The Court was of the view that in cases of serious offences it may not be possible for the police to complete investigation within the stipulated period, yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. In Uday Mohanlal Acharya (supra), the Supreme Court, in the context of Section 167(2) of the Code, held that on the expiry of the stipulated period of 60 days or 90 days (as the case may be) an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed, and the accused is entitled to be released on bail, if he is prepared to and does furnish the bail, as directed by the Magistrate. In Narayan and Ors. v. State of Rajasthan 1993 Crimes 322 (HC), the Rajasthan High Court was of the view that once the period of 90 days or 60 days, as the case may be, mentioned in Section 167(2) of the Code expires before taking cognizance of the offences by the Court, the accused get a valuable right to be released on bail and their detention in such cases after the expiry of the stipulated period would be illegal. The Court also observed that this illegality could not be validated by an order of remand subsequently made under Section 309(2) of the Code. This latter view is of course not in consonance with the view taken by this Court in the case of Sunil Kumar Sharma v. State in Bail Application 1244/2005 decided on 27.6.2005. In Mahaveer Singh vs. State of Rajasthan 1992 (3) Crimes 479, the Rajasthan High Court also took the view that if cognizance has not been taken within 60 days or 90 days as provided under Section 167(2) of the Code, the Accused, after the expiry of the said period, has an absolute right to be released on bail. In Khimbhadhur Palshuram Thapa vs. State of Maharashtra 1989 (3) Crimes 54, the Bombay High Court was of the view that the mere mechanical adjournment of a case after a charge-sheet is filed would not amount to taking cognizance of the offence. The Madhya Pradesh High Court in the case reported as In Re: Miscellaneous Bail Application 242/1993 1993 (3) Crimes 955 directed the Accused to be released on bail under Section 167(2) of the Code inasmuch as copies of the challan were supplied to the Accused beyond 90 days of his arrest."

E.The Hon'ble Supreme Court also held in Directorate of Enforcement vs. Deepak Mahajan & Anr: (1994) 3 SCC 440 that:-

"136. In the result, we hold that sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and Section 104 of Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA.

137.In the result, the impugned judgment of the Full Bench (five Judges) of the High Court holding the view that the law laid down in O.P. Gupta "regarding the powers available to a Magistrate under Section 167(2) of the Code of Criminal Procedure to commit to custody a person taken before him by the Customs Officer is incorrect" is set aside. The law enunciated in O.P. Gupta by a three-Judge Bench is the correct law and accordingly the said decision is upheld."

F.In Abhishek vs. State of NCT of Delhi; Crl.M.C. 2242/2020 dated 18.10.2021; the Hon'ble High Court of Delhi clearly held that:-

"15. A plain reading of the provision would show that once the maximum period provided for an investigation prescribed under the first proviso (a) to Section 167(2) Cr.P.C. is over and no charge sheet is filed, the accused becomes entitled to be released on bail, more appropriately called the 'default bail'. The right to seek default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, and such a right cannot be suspended even during a pandemic situation. The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet [Refer: S. Kasi v. State through the Inspector of Police Samaynallur Police Station Madurai District reported as 2020 SCC OnLine SC 529].

16.The Courts have been repeatedly seized with various nuances of the provision time and again, and each time have emphasized on the need to secure the personal liberty of an individual as guaranteed under Article 21 of the Constitution of India. The guiding principles have been laid down by the Supreme Court in catena of decisions and one such case was Rakesh Kumar Paul v. State of Assam reported as (2017) 15 SCC 67, wherein the Court took note of the 41st Report of the Law Commission of India, which in view of an anomaly created by the then prescribed limit of 15 days to complete investigation, recommended fixing a maximum period of 60/90 days for completing the investigation depending upon the seriousness of the offence. While referring to the decision of a Constitution Bench in Sanjay Dutt v. State through C.B.I., Bombay (II) reported as (1994) 5 SCC 410 as well as its decisions in Uday Mohanlal Acharya v. State of Maharashtra reported as (2001) 5 SCC 453 and Union of India through Central Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav reported as (2014) 9 SCC 457, the Supreme Court in Rakesh Kumar Paul (Supra), by a majority view, further held as under:

"37. This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav. In that decision, reference was made to Uday Mohanlal Acharya v. State of Maharashtra and the conclusions arrived at in that decision. We are concerned with Conclusion (3) which reads as follows : (Nirala Yadav case, SCC p. 472, para 24) "13. (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.' (Uday Mohanlal case, SCC p. 473, para 13)"

17.While castigating on the practice adopted by the prosecution as well as by some Courts in defeating the purpose of the provision inhering in Section 167(2) Cr.P.C., the Court also held:-

"39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra wherein it was observed that some courts keep the application for 'default bail' pending for some days so that in the meantime a charge-sheet is submitted. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for 'default bail' during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge-sheet or challan in court."

OBLIGATION OF THE MAGISTRATE TO INFORM THE ACCUSED OF ACCRUAL OF A RIGHT TO SEEK DEFAULT BAIL

22.The order remanding an accused to custody is not an empty formality and at that stage, the Magistrate is required to apply his mind for the necessity of remand. The 60th or 90th day of custody assumes great significance as in the event of non-filing of charge sheet, a right under Section 167(2) Cr.P.C., which is held to be an indefeasible and fundamental right, accrues in favour of the accused. To ensure that this right does not get defeated in any manner, an obligation is cast upon the Magistrate to inform an undertrial prisoner about accrual of such right. The issue relating to undertrial prisoners who could not avail such statutory right came up before the Supreme Court in Hussainara Khatoon and Others v. Home Secretary, State of Bihar, Patna reported as (1980) 1 SCC 108, wherein it was held:-

"3. ...It is apparent from these charts that some of the petitioners and other undertrial prisoners referred to in these charts have been produced numerous times before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that on each of the countless occasions on which these undertrial prisoners were produced before the Magistrates and the Magistrates made orders of remand, they must have applied their mind to the necessity of remanding those undertrial prisoners to judicial custody. We are also very doubtful whether on the expiry 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of sub-section (2) of Section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail."

G.In Saravanan v. State represented by the Inspector of Police, reported as (2020) 9 SCC 101, where the case of the appellant was that he was inside jail for more than 101 days but the investigation was not completed and the police did not file the final report within the period prescribed under Section 167 Cr.P.C., the Supreme Court held as follows:-

"9. ...However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul, where the investigation is not completed within 60 days or 90 days, as the case may be, and no charge-sheet is filed by 60th or 90th day, the accused gets an "indefeasible right" to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail Under Section 167(2) CrPC 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 charge-sheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. ...As observed by this Court in Rakesh Kumar Paul and in other decisions, the accused is entitled to default bail/statutory bail, subject to the eventuality occurring in Section 167 CrPC, namely, investigation is not completed within 60 days or 90 days, as the case may be, and no charge-sheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail."

H.That jail is an exception and bail is a right, which is a cardinal principle of criminal law, as the personal liberty of a citizen is paramount and can be curtailed only on account of real and duly substantiated grounds and not on the whims and fancies of officers exercising executive power. It is trite law that bail should not be withheld as punishment, as held by the Hon'ble High Court in the case of H.B. Chaturvedi vs. CBI, reported as 171(2010) DLT 223, and by the Hon'ble Supreme Court in the case of Sanjay Chandra vs. CBI, reported as 2012 (1) SCC 240.

I.That the Hon'ble High Court in the case of Jitender Kumar vs. Govt. of NCT of Delhi, 2016 (10) JCC 652, has so held.

J.That in the light of the golden principles laid down from time to time by the higher Courts, in Dipak Subhash Chandra Mehta vs. CBI (2012) 4 SCC 134, the Hon'ble Apex Court held that "the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as

a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence;

b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and;

c) prima facie satisfaction of the court in support of the charge.

In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted."

K.In Anil Mahajan vs. Commissioner of Customs; (2000) 84 DLT 854, it was held that "there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

L.That the subject alleged goods and all alleged related documents are in the possession of the department. Hence, there is no likelihood of the Applicant tampering with the evidence in any manner.

M.That the investigation qua the Applicant is complete and he is not required for any further investigation. Hence, no useful purpose is being served in keeping the Applicant in custody, which amounts to punishment without trial.

N.That the investigation of the said case is already over and there being absolutely no chance of the Accused fleeing away from the process of law, the Accused is entitled to bail, and the Accused is always available to submit himself to the custody of the Court at any point of time. It is the basic principle of criminal jurisprudence that the Accused is considered innocent until held guilty.

O.That the Accused has already suffered immensely, as the Accused has been in jail since Date of judicial custody.

P.That it may not be out of context to point out that the Hon'ble Supreme Court in the matter of Sanjay Chandra vs. CBI (2012) 1 SCC 40 has again upheld the fundamental principle of criminal jurisprudence "bail and not jail" and has observed that time and again it has been stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

Q.That the Applicant/Accused, who is an undertrial prisoner, cannot be detained in jail custody for an indefinite period, as that would violate Article 21 of the Constitution. Every person, detained or arrested, is entitled to a speedy trial.

R.That the trial may take considerable time, and the Accused, who is in jail, has to remain in jail longer than the period of detention had he been convicted. It is not in the interest of justice that the Accused should be in jail for an indefinite period.

S.That the Applicant/Accused is the sole bread-winner of the family and has a minor child, and the Applicant/Accused is unable to take care of the family, and the child in his growing years is unable to get the love, affection and care of the father. Since the Applicant/Accused, being the sole earning member of the family, is in custody for more than 60 days, the family is under huge financial distress, and the future of the minor child and the family at large is under threat and uncertainty.

T.That, moreover, in these compelling and difficult times, where life is uncertain, the parents long for the care and affection of the Applicant/Accused, and thus, on these humanitarian grounds, the Applicant/Accused be released on bail.

U.That even prima facie there is nothing to show either the commission of the aforesaid offences under the Customs Act, or the involvement of the Accused in the said offence.

V.That the allegations are false, frivolous and totally vague, and it is an attempt to implicate the Applicant in a false and fabricated case, and the Applicant is entitled to the grant of bail on the ground of parity.

W.That in State of Rajasthan v. Balchand, the Supreme Court laid down that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice, repeating offences, intimidating witnesses and the like.

X.That the freedom of the individual is as necessary for the survival of society as it is for the egoistic purposes of the individual. A person seeking bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom by the acceptance of conditions which this Hon'ble Court may think fit to impose, as this Hon'ble Court may deem fit.

Y.That the Hon'ble Supreme Court has taken the view that when there is a delay in the trial, bail should be granted to the Accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569; Vivek Kumar v. State of U.P., (2000) 9 SCC 443; Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].

Z.That the Hon'ble Supreme Court of India has held in a matter titled as "Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors." (2011) 1 SCC 694 that: "It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided."

AA.That the prosecution, with their artful manipulation and by concealing certain facts, has perhaps succeeded in getting the FIR registered against the Applicant, but it is the humble submission of the Applicant that the facts stated in the FIR qua the Applicant are absolutely false and have no truthful bearing.

BB.That the Applicant/Accused is ready to produce sound sureties to the satisfaction of this Hon'ble Court, if released on bail, and the Applicant/Accused assures to abide by all the conditions that the Hon'ble Court imposes while enlarging the bail.

PRAYER

In view of the above-mentioned facts and circumstances, it is, therefore, most respectfully prayed before the Hon'ble Court that this Hon'ble Court may kindly be pleased to:

(i)release the Applicant/Accused on bail under Section 167(2) CrPC till the final disposal of the case;

(ii)pass any such other order as this Hon'ble Court deems fit in the interest of justice.

It is prayed accordingly.

PLACE: DELHIAPPLICANT / ACCUSED

THROUGH

DATED:

ADVOCATE