IN THE SUPREME COURT OF INDIA

[ORDER XXII RULE 2(1)]

CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2023

(Arising from the Final Judgment and Order

dated18.04.2023 passed by the High Court of New Delhi
in Criminal M.C No. 2164 of 2023 under Section 482 of
Cr.P.c)

WITH PRAYER FOR INTERIM RELIEF

IN THE MATTER OF:

ARIF KHAN (IN JC) …PETITIONER

VERSUS

STATE (GOVT. OF NCT OF DELHI) …RESPONDENT

WITH
I.A. No. ___________OF 2023
An Application for exemption from filing certified copy of the Impugned

Judgment dated 18.04.2023--

PAPER - BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: Mr. Srijan Sinha, Advocate

 INDEX

RECORD OF PROCEEDINGS

S. Date of Record of Proceedings Pages

No.
1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.
 IN THE SUPREME COURT OF INDIA
[ORDER XXII RULE 2(1)]
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2023

(Arising from the Final Judgment and Order

dated18.04.2023 passed by the High Court of New Delhi
in Criminal M.C No. 2164 of 2023 under Section 482 of
Cr.P.c)

IN THE MATTER OF:

ARIF KHAN (IN JC) …PETITIONER

VERSUS

STATE (GOVT. OF NCT OF DELHI) …RESPONDENT

OFFICE REPORT ON LIMITATION

1. The Petition is within time.

2. The Petition is barred by time and there is delay of ___ days in

filing the same and application for condonation of ____ days delay
has been filed.

3. There is a delay of ____ days in refilling the petition and

application for condonation of ____ days delay in refilling has
been filed.

New Delhi
Dated:
BRANCH OFFICER
INDEX
SI. Particulars of Documents Page No. of part to which Remar
No. it belongs ks
Part I Part II
(Contents (Contents
of Paper of file
Book) alone)
(i) (ii) (iii) (iv) (v)

1. Court Fees

2. O/R on Limitation

3. Listing Proforma

4. Cover Page of Paper Book

5. Index of Record Proceedings

6. Limitation Report prepared by the

Registry

7. Defect List

9. Note Sheet

10 Synopsis/List of Dates

12. Special Leave Petition with Affidavit.

13. ANNEXURE P-1

15. ANNEXURE P-2

16. ANNEXURE P-3

17. ANNEXURE P-4

18. ANNEXURE P-5

19. ANNEXURE P-6

20. ANNEXURE P-7

 SYNOPSIS AND LIST OF DATES

The Ld. Single Judge of the Hon’ble Delhi High Court has

erroneously held that the non-filing of FSL report along

with the chargesheet does not render the chargesheet

incomplete in NDPS matter. The said view has been taken

by Hon’ble High Court of Delhi by relying upon the

decision of a coordinate bench in the case of Arbaaz vs

state (Criminal Revision Petition No 1219/2019 ), even

though it was brought to the notice of Hon’ble High Court

that SLP bearing No. (SLP CRIMINAL NO. 6876-

6876/2022) has been filed against the said decision and

interim relief has been granted in the said petitions.

The present case is squarely within the ambit of the larger

question of law being deliberated by this Hon'ble Court in

Mohd. Arbaz v State of NCT of Delhi, SLP (Crl) no. BJ

64/2021 and other connected matters on "Whether

absence of forensic report under NDPS would render the

chargesheet incomplete?", wherein this Hon'ble Court vide

Orders dated 13.11.2021 and 09.11.2022 extended the

benefit of interim bail to the concerned Petitioners in the

batch matter sub-judice before this Hon'ble Court therein

on the ground that prosecution filed chargesheet(s) in the

absence of FSL/Chemical analysis report.

The Petitioner has preferred the Present Special Leave

Petition before this Hon’ble Court assailing the final Order

and Judgement dated 18.04.2023 passed by the Hon’ble

High Court of New Delhi at New Delhi in Crl. M.C

2164/2023 whereby the Hon’ble High Court was pleased

to dismiss the bail application preferred by the Petitioner

arising out of FIR No." 152/2022 dated 26.03.2022 u/s

21/29/61/85 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as "NDPS

Act'') registered at P.S. Darya Ganj qua Petitioner without

appreciating the factual and legal matrix of the present

case which: is seeding immense hardship and prejudice to

the Petitioner. It is imperative to note that the Petitioner

has been languishing in custody since 26.03.2022 and

hence, the Petitioner is suffering incarceration for over 1

year and 3 months and moreover, the charges for alleged

offences under NDPS Act qua Petitioner has not framed

hitherto.

The Petitioner has approached this Hon'ble Court with a

prayer for grant of bail inter-alia on the following grounds:

(i) Filing Chargesheet/Police report sans any

FSL/Examiner report for offences under

NDPS Act is incomplete in terms of section

173. Of Cr.P.C. and the same cannot

defeat/efface the indefeasible right

accruing to Petitioner for

"default/compulsive bail" in terms or

section 36 A (4) of NDPS Act r/w 167 (2)

of Cr.P.C

In terms of Section 36A (4) and the proviso thereto of the

NDPS Act.which finds its basis on Section 167(2) of CrPC,

captures the time limit for competition of investigation

and filing ofchargesheet, failing which the accused is

entitled to statutory/default/compulsive bail. Section

36A(4) of the NDPS Act mandates, that the chargesheet

shall be filed within 180 days, and the proviso thereto

extends the same upto 1 year (being inclusive of the 180

days as mentioned). In the present case, the 180 days

from the date of the remand of the Petitioner was

completed on 26.09.2022.

On ________, the Respondent filed the chargesheet in a

mechanical and cyclostyle manner sans enclosing any

FSL/Chemical Examiner report

vis-a-vis to the alleged seized contraband with sole

purpose to take away the indefeasible right to

“default/compulsive bail" of the Petitioner seeding in

curtailing his paramount personal liberty enshrined under

Article 21 of the Constitution of India. Furthermore, the

Ld. Special Judge Court NDPS,

Tis Hazari, New Delhi (hereinafter referred to as the "Ld.

Trial Court"), without judicial application of mind, was

pleased to take cognizance of the chargesheet vide Order

dated ________.
In the present case, Petitioner, was arrested on

26.03.2022 for alleged selling of 340 grams of smack and

was booked for offences Under section21/29/61/85 of the

NDPS Act. Imperatively, in the absence of aFSL/Chemical

examiner reportthe type and quantity of the contraband

cannot be ascertained in terms of Schedule appended

within the NDPS Act.

The respondent failed to substantiate their version and

prove beyond reasonable doubt that the alleged

articlerecovered from Petitioner is indeed a

substance/contraband which comes under the purview of

''2 (xiv)" & “2 (xxiii)" of NDPS Act that defines "narcotic

drug" & "psychotropic substance "respectively as the

aforesaid chargesheet sans any FSL report filed before the

concerned Ld. Trial Court was pellucidly incomplete

chargesheet because FSL/Chemical Examiner report

pertaining to the seized contraband is inherent and

indispensable evidence to support the Prosecution version

and prove beyond reasonable doubt the alleged seized

substance/contraband comes under the ambit of NDPS

Act.

The indefeasible right accruing to petitioner for

default/compulsive bail in terms of Section 36A(4) of

NDPS Act r/w 167(2) of Code of Criminal Procedure is an

integral part to personal liberty under Article 21 of

Constitution of India and cannot be brushed away by the

mere fact that the chargeshcct which is incomplete in

terms of Section 173 of Cr.P.C has been filed in cases of

offences under NDPS Act.

Hence, the present Special Leave Petition.

 LIST OF DATES AND EVENTS

25.03.2022 As Per Respondent’s version, @8:40 PM

CT.Neeraj Received a source information

that one person namely Arif Khan will be

allegedly carrying a huge quantity of Smack

to further sell to his friends near Mahaveer

Vatika and the same was diarized in DD No.

118A and DD No-119A dated 25.03.2022.

@9:43 PM as per the directions of SHO,

raiding team under the leadership of SI

Sonal Raj Jha had left for Mahaveer Vatika

from the Police Station.

@9:55 PM aforesaid officers had reached

Mahaveer Vatika SDMC Parking Ansari

Road.

@10:40 PM one suspect person was seen

coming from N.S Marg Darya Ganj towards

Mahaveer Vatika Ansari Road carrying a bag

on his shoulder which was allegedly

identified by the source to be containing

huge quantity of Smack.

@10:42 two more persons came and

approached the petitioner and pointed out

to the bag which was alleged to be smack

asking the petitioner if he has got the

substance with him. Consequently, the

petitioner and other two persons, standing

under the tree in front of Mahaveer Vatika

community Hall were apprehended.

Thereafter, the Petitioner was allegedly

given the option whether he wanted to be

searched in the presence or Ld. Executive

Magistrate or any Gazette Officer, and it is

alleged that the Petitioner agreed to be

searched by the Police Officer and allegedly

thereafter, an alleged notice pertaining to

search was served upon him.

As per the respondent, the ACP incharge

reached the spot and under his surveillance

the search of the Petitioner and accused

was carried out by CT. Neeraj. Therefore,

search of the aforesaid bag was commenced

and allegedly as per the prosecution

version, one plastic box which had

transparent tape on it with silver cover lid

and ‘Jimit’ written on it was recovered.

On opening the same one white plastic

Polythene was found and light brown colour

substance was to be seen.

On testing the aforesaid substance on field

testing kit on the spot it gave a positive

indication for smack and weighed around

340 grams.

26:03:2022 @1:20 AM the Petitioner and

other accused were arrested from the spot

by the above noted concerned SI.

True Copy of the Charge sheet is marked

and annexed as ANNEXURE A.

True Copy of FIR No.152/2022 dated

26.03.2022 u/s 21/29/61/85 of the NDPS

Act registered at Police Station Darya Ganaj

is marked and annexed as Annexure B.

True Copy of Seizure Memo along with its

true typed copy dated 26.03.2022 is

marked and annexed as ANNEXURE C .

True Copy of Arrest Memo along with its

true typed copy dated 26.03.2022 is

marked and annexed as ANNEXURE D

This Hon’ble Court in Mohd. Arbaz &Ors vs.

State of NCT Of Delhi (SLP Criminal No.

6876-6876/2022) taking into consideration

the issue at hand that "Whether absence of

 forensic report under NDPS would render

the chargesheet incomplete" extended the

benefit of interim bail to the petitioner

therein and in other connected batch

matters on the ground that prosecution

failed to file complete chargesheet with the

report of Chemical examiner within the

stipulated period of time. True Copy of

Order dated 13.12.2021 passed by this

Hon'ble Court in Mohd. Arbaz vs State of

NCT of Delhi, SLP (Crl.) No. 6876-

6876/2022 is marked and annexed as

ANNEXURE E.

09.11.2022 This Hon’ble Court in similar batch matters

connected to Mohd. Arbaz vs.

State of NCT of Delhi, SLP (Crl)

No. 8164/2021 extended the

benefit of interim bail on the

ground that prosecution failed

 to file complete chargesheet

with the report of Chemical

examiner within the stipulated

period of time. True Copy of

Order dated 09.11.2022

passed_ by this Hon'ble Court

in similar batch matter

connected to Mohd. Arbaz v.

State of NCT of Delhi: SLP

(Crl.) No. S-164-8166/2021 is

marked and annexed as

Annexure F.

This Hon’ble Court in similar batch matters

connected to Mohd. Arbaz v

State of NCT of Delhi

17.03.2023 Petitioner preferred a bail

application u/s 439 Cr.P.C in

NDPS FIR No. 152/2022

before Ld. Special Judge

(Under the NDPS Act), Tis

 Hazari District, Delhi

(hereinafter referred to as 'Ld.

Trial Court’) but the same was

dismissed on the ground on

nascent stage of investigation.

True Typed Copy of the order

dated 17.03.2023 passed by

Ld. Trial Court, Tis Hazri in

NDPS Case No. CNR NO. -

DLCT01·013440-2022 is

marked and annexed as

Annexure G.

The Hon'ble High Court of New Delhi in the

New Delhi vide judgment dated

18.04.2023 in Crl M.C. No.

2164/2023 dismissed the bail

application of the Petitioner,

notwithstanding the fact that

 the Respondent, in the

absence of CFSL report, filed

an incomplete chargesheet

within thestatutory period in

terms of Section 36A(4) of

NDPS Act and proviso thereto.

The Hon'ble High Court of New Delhi in the

New Delhi vide judgment dated

18.04.2023 in Crl M.C. No.

2164/2023 dismissed the bail

application of the Petitioner,

notwithstanding the fact that

the Respondent, in the

absence of CFSL report, filed

an incomplete chargesheet

within thestatutory period in

terms of Section 36A(4) of

NDPS Act and proviso thereto.

(IMPUGNED ORDER)
Hence, the present Special Leave Petition.
 IN THE SUPREME COURT OF INDIA
[ORDER XXII RULE 2(1)]
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2023

IN THE MATTER OF: POSITION OF PARTIES

In Trial In High Court In this Court

Court
Petitioner Petitioner

ARIF KHAN (IN JC) …PETITIONER

S/o Mohd. Saleem
R/o House No 876,
Churiwalan Daryaganj,
Jama Masjid ,
Central Delhi,
VERSUS

STATE (GOVT. OF NCT OF DELHI) …RESPONDENT

Through Standing Counsel
Supreme Court Of India

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA.

TO,

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE ABOVE-NAMED

PETITIONERS

MOST RESPECTFULLY SHEWETH:

1. By the present Petition for Special Leave, the Petitioner

seeks to challenge the impugned order dated 18.04.2023

passed by the Hon’ble Delhi High Court erroneously

dismissing the Crl. Misc. Petition bearing Crl. Misc Petition

2164/2023 filed by the petitioner under Section 482 of

the Cr.P.C. in relation to an alleged offence under Section

29 NDPS Act.

2. QUESTIONS OF LAW:

The following substantial questions of law arise for

consideration by this Hon’ble Court:

A. Whether the Hon'ble High Court ought to have

appreciated that the chargesheet filed on ______ in the

absence of CFSL report was incomplete?

B. Whether the Hon'ble High Court ought to have

appreciated that this Hon’ble Court in Mohd. Arbaz v.

State (NCT of Delhi)., SLP (Crl.) No. 8164/2021and other

connected matters is seized of the issue of "whether

chargesheet filed without FSL is complete?" and in the

interim this Hon'ble Court has enlarged the Petitioners in

the sub-judice connected matters on interim bail?

3. DECLARATION IN TERMS OF RULE 2(2)

That the ppetitioner herein states that no other petition

seeking special leave to appeal has been preferred by the

Petitioner against the impugned judgment and final order

dated 18.04.2023 passed by the Hon'ble High Court of

Delhi, in Criminal Misc. Main 2164/2023.

4. DECLARATION IN TERMS OF RULE 4

That the Annexures _______ produced along-with the

present Special Leave Petition are the true copies of the

pleadings/documents which formed part of the records of

the case before the Hon'ble' High Court against whose

order the leave to appeal is sought for in this petition.

5. GROUNDS:

The Petitioner craves the indulgence of this Hon'ble Court

to grant Special leave to Appeal, inter-alia, on the

following grounds which are set out hereinafter without

prejudice to one another: -

A. BECAUSE the Petitioner has approached this Hon'ble

Court praying for special leave to appeal inter-alia on the

following grounds:

(i) Filing Chargeshcct/Police report sans any

FSL/Examiner report for offences under NDPS Act

is incomplete in terms of section 173 of Cr.P.C and

the same cannot “default/compulsive bail” the

indefeasible right accruing to Petitioner for

"default/compulsive bail" in terms of section 36

A(4) of NDPS Act r/w 167 (2) of Cr.P.C

(ii) It is pertinent to mention that it was brought to

the notice of the Hon’ble High Court of Delhi that

the decision of the coordinate bench has been

challenged before this Hon’ble Court and interim

relief has been granted in the same.

(iii) That the Petitioner has suffered incarceration for

more than l year and___months That till date No

 Cognizance has been taken till now in the above

mentioned matter.

B. BECAUSE the respondent after exhausting the benefit

of additional 365 daysthe filled the chargesheet in

mechanical and cyclostyled manner bearing

no. ______ before the Ld. Trial Court against the

Petitioner for offencesu/s _________ of NDPS sans any

FSL/Chemical examiner report. ThisHon'ble Court in Mohd.

Arbaz v State of NCT of Delhi, SLP (Crl.) no.

8164/2021 is at moment considering the issue "Whether

absence of forensicreport under NDPS would render the

chargesheet incomplete" and extendedthe benefit of

interim bail to the petitioner therein and in other

connected batchmatters on the ground that prosecution

failed to file chargesheet with thereport of Chemical

examiner within the stipulated period of time.

C. BECAUSE failure to obtain FSL/Chemical Examiner

report offencesunder NDPS Act within the stipulated

period of time in terms of Section 36A(4) engender

inordinate delay for ·which the Petitioner ought not to be

suffered. Right to speedy investigation is one of the

significant facet offundamental right of speedy trial and

the same cannot be extinguishedbecause of the

inefficacious investigation on part of respondents. This

court in Maneka Gandhi v. Union of India (19 78) 1 sec

2481·eiterated that Article 21 of Indian Constitution

enunciates that "no person shall be deprived of his life or

personal liberty except according to procedure established

by law, and such procedure cannot be arbitrary, unfair or

unreasonable." The sacrosanctpurpose of section 36 A(4)

of NDPS Act r/w 167 (2) of the code is to

safeguard the paramount right of "Default Bail" which

comes into play when the Investigation Agency failed to

complete the investigation to prove their case beyond

reasonable doubt qua accused within stipulated period of

timetherein.
D. BECAUSE FSL/Chemical examiner report is necessary

in cases entailingNDPS Act to fulfil the definition of

chargesheet in terms of Section 173 or

Cr. P .C and consequently to be filed before the Ld. Trial

Court under thestipulated period of time under section

167 (2) of Cr. P .C r/w 36 A (4) of NDPS

Act. The Hon’ble High Court of Punjab and Haryana in

Jagvinder Singh vsState of Haryana, CRM No..361 of 2021

while granting default bail onground of filing of

chargesheet sans FSL report categorically opined referring

of this Hon'ble Division bench decision in Ajit Singh

@Jeeta & Anr. Vs Stateof Punjab, CRR No. 4659 of 2015

"that the report of FSL vis-a-vis to thenature of the

recovered substance would go to the root of the matter

and achallan filled without FSL report with regard to the

nature of substance wouldbe an incomplete challan and

would not satisfy the requirement envisaged

under section 167 (2) of Cr.P. C and that in the absence

of the challan havingbeen presented along with the report

of the FSL, the accused in such -...

circumstances would be entitled to be released on default

bail"

E. That this Hon'ble Court in the case of Rakesh Kumar

Paul v. State of Assam,(2017) 15 SCC 67: (2018) I SCC

(Cri) 401 : 2017 SCC Online SC 924held that in matters of

'default bail' u/s 167(2) CrPC, since the matters involve

personal liberty, the same cannot be taken away in

matters of technicality andground of Section 167(2) CrPC

can be pied either orally or verbally. TheHon’ble Supreme

Court further held that it would be the responsibility of a

court to at least apprise the accused of his or her

indefeasible right for defaultbail. The relevant extract of

Rakesh Kumar Paul v. State of Assam(supra) is

hereunder:

"Procedure for obtaining default bail”

“40. In the present case, it was also argued by learned

counsel for the State (1996) 1 SCC 722 that the petitioner
did not apply for ‘default bail’ on or after 4th January,

2017 till 24th January, 2017 on which date his

indefeasible right got extinguished on the filing of the

charge sheet. Strictly speaking this is correct since the

petitioner applied for regular bail on 11th January, 2017 in

the Gauhati High Court – he made no specific application

for grant of ‘default bail’. However, the application for

regular bail filed by the accused on 11th January, 2017

did advert to the statutory period for filing a charge sheet

having expired and that perhaps no charge sheet had in

fact being filed. In any event, this issue was argued by

learned counsel for the petitioner in the High Court and it

was considered but not accepted by the High Court. The

High Court did not reject the submission on the ground of

maintainability but on merits. Therefore it is not as if the

petitioner did not make any application for default bail –

such an application was definitely made (if not in writing)

then at least orally before the High Court. In our opinion,

in matters of personal liberty, we cannot and should not

be too technical and must lean in favour of personal

liberty. Consequently, whether the accused makes a

written application for ‘default bail’ or an oral application

for ‘default bail’ is of no consequence. The concerned

court must deal with such an application by considering

the statutory requirements namely, whether the statutory

period for filing a charge sheet or challan has expired,

whether the charge sheet or challan has been filed and

whether the accused is prepared to and does furnish bail.

41. We take this view keeping in mind that in matters of

personal liberty and Article 21 of the Constitution, it is not

always advisable to be formalistic or technical. The history

of the personal liberty jurisprudence of this Court and

other constitutional courts includes petitions for a writ of

habeas corpus and for other writs being entertained even

on the basis of a letter addressed to the Chief Justice or

the Court.

42. In Sunil Batra II v. Home Secretary, Delhi

Administration 13 this Court accepted a letter, which was

treated as petition, written by a prisoner in Tihar Jail,

Delhi complaining of inhuman torture inflicted on another

prisoner by the Jail Warder. In Hussainara Khatoon v.

State of Bihar14 a number of writ petitions, some by way

of a letter, were grouped together and treated as habeas

corpus petitions. In Rubabbuddin Sheikh v. State of

Gujarat15 the brother of the deceased wrote a letter to

the Chief Justice of India complaining of a fake encounter

and subsequent disappearance of his sister-in-law. This

was treated as a habeas corpus petition. In Kishore Singh

Ravinder Dev v. State of Rajasthan16 the petitioners sent

a telegram to a learned judge of this Court complaining of

solitary confinement of prisoners. The telegram was

treated as a habeas corpus petition and the concerned

persons were directed to be released from solitary

confinement. In Paramjit Kaur (Mrs.) v. State of

Punjab17 a telegram received at the residential office of a

learned judge of this Court (1980) 3 SCC 488 (1980) 1

SCC 98 (2007) 4 SCC 318 (1981) 1 SCC 503 (1996) 7

SCC 20 alleging an incident of kidnapping by the police

was treated as a habeas corpus petition. In Bandhua

Mukti Morcha v. Union of India18 a petition addressed to a

learned judge of this Court relating to the inhumane and

intolerable conditions of stone quarry workers in many

States and how many of them were bonded labour was

treated as a writ petition on the view that the

“Constitution-makers deliberately did not lay down any

particular form of proceeding for enforcement of a

fundamental right nor did they stipulate that such

proceeding should conform to any rigid pattern or

straight-jacket formula”. In People’s Union for Democratic

Rights v. Union of India 19 a letter addressed to a learned

Judge of this Court concerning violation of various labour

laws in the construction projects connected to the Asian

Games was treated as a writ petition. In Dr. Upendra Baxi

(I) v. State of Uttar Pradesh 20 a letter relating to

inhuman conditions in the Agra Protective Home for

Women was treated as a writ petition and in Sheela Barse

v. State of Maharashtra 21 a letter addressed by a

journalist complaining of custodial violence against woman

prisoners in Bombay was treated as a writ petition. These

cases are merely illustrative of the personal liberty

jurisprudence of this Court and in matters pertaining

to Article 21 of the Constitution of India this Court has

consistently taken the view that it is not advisable to be

ritualistic and formal. However, we must make it clear

that we should not be understood to suggest that

procedures must always be given a go-by – that is

certainly not our intention. (1984) 3 SCC 161 AIR 1982

SC 1473 (1983) 2 SCC 308 (1983) Duty of the Courts

43. This Court and other constitutional courts have also

taken the view that in the matters concerning personal

liberty and penal statutes, it is the obligation of the court

to inform the accused that he or she is entitled to free

legal assistance as a matter of right. In Khatri v. State of

Bihar22 the Judicial Magistrate did not provide legal

representation to the accused since they did not ask for it.

It was held by this Court that this was unacceptable and

that the Magistrate or the Sessions Judge before whom an

accused appears must be held under an obligation to

inform the accused of his or her entitlement to obtain free

legal assistance at the cost of the State. In Suk Das v.

Union Territory of Arunachal Pradesh23 the accused was

tried and convicted without legal representation, due to

his poverty. He had not applied for legal representation

but notwithstanding this, this Court held that the trial was

vitiated and the sentence awarded was set aside,

particularly since the accused was not informed of his

entitlement to free legal assistance, nor was an inquiry

made from him whether he wanted a lawyer to be

provided at State expense. In Rajoo @ Ramakant v. State

of Madhya Pradesh24 the High Court dismissed the appeal

of the accused without enquiring whether he required

legal assistance at the expense of the State even though

he was unrepresented. Relying on Khatri and Suk Das this

Court remanded his appeal to the High Court for re-

hearing after giving an opportunity to the accused to take

legal assistance. Finally, in Mohammed Ajmal

Mohammad (1981) 1 SCC 627 (1986) 2 SCC 401 (2012) 8

SCC 553 Amir Kasab v. State of Maharashtra25 this Court

relied on Khatri and held that in paragraph 474 of the

Report as follows:
“… it is the duty and obligation of the Magistrate before

whom a person accused of committing a cognizable

offence is first produced to make him fully aware that it is

his right to consult and be defended by a legal practitioner

and, in case he has no means to engage a lawyer of his

choice, that one would be provided to him from legal aid

at the expense of the State. The right flows from Articles

21 and 22(1) of the Constitution and needs to be strictly

enforced. We, accordingly, direct all the Magistrates in the

country to faithfully discharge the aforesaid duty and

obligation and further make it clear that any failure to

fully discharge the duty would amount to dereliction in

duty and would make the Magistrate concerned liable to

departmental proceedings.”

44. Strong words indeed. That being so we are of the

clear opinion that adapting this principle, it would equally

be the duty and responsibility of a court on coming to

know that the accused person before it is entitled to

‘default bail’, to at least apprise him or her of the

indefeasible right. A contrary view would diminish the

respect for personal liberty, on which so much emphasis

has been laid by this Court as is evidenced by the

decisions mentioned above, and also adverted to in Nirala

Yadav.”

E. The Hon’ble High Court of Delhi in the case of

Subhash Bahadur@Upenderv. State (NCT of Delhi)., Bail

Application No. 3141/2020 held that Section.'

167(2) CrPC has not requisite mandate of any formal

application for default-..._

bail and the only condition as per the section required to

be met is thewillingness/preparedness of the

applicant/accused in custody to furnish a bail bond. The

relevant extract of Subhash v. State of NCT of Delhi

(supra) is as under:

“At this stage, it would be relevant to refer to Sub-section

(2) of Section 167 of the Cr.PC. The same is set out

below:
"167. Procedure when investigation cannot be completed

in twenty-four hours. –

(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 XXXIII 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."

32. A plain reading of the Proviso (a) to Section 167(2) of

the Cr.PC indicates that an accused would necessarily

have to be released on bail "if he is prepared to and does

furnish bail". Thus, in cases where the statutory period of

sixty days or ninety days has expired, the accused would

be entitled to be released on bail provided he meets the

condition as set out therein - that is, he is prepared to

furnish and does furnish bail. It is important to note that

there is no provision requiring him to make any formal

application.

33. It is also trite law that there is no inherent power in a

court to remand an accused to custody. Such power must

be traced to an express provision of law

[See: NatbarParidaBisnuCharan vs State of Orissa: (1975)

Supp SCR 137 and Union of India vs Thamsharasi: (1995)

4 SCC 190]. As is apparent from the language of Proviso

(a) to Section 167(2) of the Cr.PC, the power of a Court to

remand an accused to custody pending investigation is

circumscribed and stands denuded if the period of sixty

days or ninety days, as the case may be, has expired and

the accused is ready and willing to furnish bail.

34. It is also necessary to bear in mind that courts have

consistently leaned to resolve the tension between form

and substance, in favour of substance and have used the

interpretative tools to address the substance of the

matter. In Ajay Hasia Etc v Khalid Mujib Sehravardi&

Ors:1981SCR(2) 79 had, in an altogether different

context, observed that "where the constitution

fundamentals vital to maintenance of human rights are at

stake, functional realism and not facial cosmetics must be

the diagnostic tool, for constitutional law must seek the

substance and not the form". Thus, if in substance the

essential conditions as set out under the Proviso (a)

to Section 167(2) of the Cr.PC are met and complied with

- that is (i) if the investigation has not been completed

within the period of sixty or ninety days, as the case may

be, from the date of arrest of the accused; and (ii) if the
accused is prepared to offer bail - then there would be no

justifiable reason to detain the accused.

35. As noticed above, the petitioner had, unequivocally,

stated that he was ready to furnish bail and provide a

sound surety. He had further indicated that he would

ready and willing to comply with any condition that may

be imposed by the Trial Court and had also undertaken to

appear before the Trial Court as and when required.

Clearly, the Proviso to Section 167(2)(a) of the Cr.P.C did

not require the petitioner to do anything more except to

indicate that he is prepared to furnish bail. Of course, he

would be released on bail only if he did so.

36. The Supreme Court in the case of Uday Mohanlal

Acharya v. State of Maharashtra: (2001) 5 SCC 453 had

observed as under:

"13. .... In our considered opinion it would be more in

consonance with the legislative mandate to hold that an

accused must be held to have availed of his indefeasible

right, the moment he files an application for being

released on bail and offers to abide by the terms and

conditions of bail."

37. In the present case, there is no doubt that the

petitioner had applied for being released on bail and had

offered to abide by the terms and conditions of bail.

Bearing that in mind, it is at once clear that the petitioner

would be entitled to default bail even though he had not

specifically mentioned the provisions of Section 167(2) of

the Cr.PC in his application.

38. Mr Amit Gupta, the learned APP had also referred to

the decision of the Supreme Court in Hitendra Vishnu

Thakur v. State of Maharashtra: (1994) 4 SCC 602 and

had drawn the attention of this Court to paragraph no. 21

of the said decision. He contended that a court cannot

release an accused on bail on its own motion without any

application on his behalf and, it would be necessary for

the accused to make an application to be released on bail

on account of default on the part of the investigation

agency. It was submitted that since no such application

had been made, the petitioner could not have been

released on default bail. The relevant extract of paragraph

no. 21 of the said decision referred to by Mr Gupta is set

out below:

"21.... We are not impressed with the argument of the

learned counsel for the appellant that on the expiry of the

period during which investigation is required to be

completed under Section 20(4) TADA read with Section

167 of the Code, the court must release the accused on

bail on its own motion even without any application from

an accused person on his offering to furnish bail. In our

opinion an accused is required to make an application if

he wishes to be released on bail on account of the

'default' of the investigating/prosecuting agency and once

such an application is made, the court should issue a

notice to the public prosecutor who may either show that

the prosecution has obtained the order for extension for

completion of investigation from the court under clause

(bb) or that the challan has been filed in the Designated

Court before the expiry of the prescribed period or even

that the prescribed period has actually not expired and

thus resist the grant of bail on the alleged ground of

'default'. The issuance of notice would avoid the possibility

of an accused obtaining an order of bail under the 'default'

clause by either deliberately or inadvertently concealing

certain facts and would avoid multiplicity of proceedings.

It would, therefore, serve the ends of justice if both sides

are heard on a petition for grant of bail on account of the

prosecution's 'default'...."

39. The two principles that emerge from the above ruling

in Hitendra Vishnu Thakur (supra) are that (i) the Court

cannot release an accused on bail on its own motion

without any application from the accused offering to

furnish bail; and (ii) that the investigating/prosecuting

agency must be put to notice.

40. There is no dispute that an accused cannot be

released on bail by a court on its own motion and it is

necessary for the accused to apply and offer to furnish

bail. As noticed above, the language of Proviso (a)

to Section 167(2) of the Cr.PC also requires an accused to

indicate that he is prepared to furnish bail before he can

be released on bail. In substance, the said condition is

met. In Rakesh Kumar Paul (supra) the Supreme Court

had noted that there may be rare cases where the

accused may not be wanted to be released on bail on

account of concerns of personal safety or for other

reasons. It is also in this context that the accused must

apply for bail. Thus, there is no controversy that it is

necessary that the accused offers to furnish bail in order

to avail of his right to default bail. If the accused offers to

furnish bail he would comply with the condition as set out

in proviso (a) to section 167(2) Cr.P.C In this case, the

said condition has been met. Undisputedly, the petitioner

had made an application, albeit under Section 439 of the

Cr PC, offering to furnish bail. In view of the decision in

Rakesh Kumar Paul (supra), even an oral plea for default

bail is compliant with the proviso(a) to Section

167(2) Cr.P.C Thus, it would be apposite to consider an

application for bail filed on expiry of stipulated period of

filing chargesheet, as an application for bail under the

proviso to Section 167 (2), since it does indicate that the

accused is prepared to furnish bail.

41. The second requirement is that the prosecution

agency must be put to notice of the ground on which the

bail is being granted in order for the prosecution agency

to point out if there is any reasons why the accused is not

entitled to such bail. By virtue of certain special acts such

as the Unlawful Activities (Prevention) Act 1967, and the

Narcotic Drugs and Psychotropic Substances Act 1985,

certain provisions of the Cr.P.C including Section 167 of

the Cr.P.C stand amended in regard to application to

offences under the said statutes. In cases pertaining to

these enactments, the court is expressly empowered to

extend the period for completion of investigation and if an

application for the same is pending, the

investigating/prosecuting agency can also point out the

same as the decision in that application would have a

bearing on the question whether an accused can be

released on bail.
42. As explained by the Supreme Court in a number of

decisions, the Proviso to Section 167(2) of the Cr.P.C is

intrinsically linked to the right under Article 21 of the

Constitution of India that "no person shall be deprived of

his life or personal liberty except according to the

procedure established by law". It embodies a safeguard

that circumscribes the power to detain an accused

pending investigation. Keeping this principle in mind and

the consistent view of the Supreme Court that in matters

of personal liberties, it would not be apposite to curtail the

same on technicalities, this Court is of this view that the

petitioner would be entitled to default bail. This is also

considering the fact that the petitioner had indicated in

unequivocal terms that he desires to be released on bail

and he is ready to furnish surety for the same.”

GROUNDS FOR INTERIM RELIEF:

That the petitioner herein has made out a prima facie case

in his favour and has everyhope of success in the present

Special Leave Petition. That this Hon'ble Court inMohd.

Arbaz v State of NCT of Delhi, SLP (Cr/.) no. 8164/2021

and other connected

matters extended the benefit of interim bail on the ground

squarely similar to thepresent SLP that the chargesheet

filed in concerned court was sans any

FSL/ChemicalExaminer report. Furtherance to this, the

Petitioner has been languishing in custodysince ________

and hence, is suffering incarceration for over 1 year and

___ monthsand charges for alleged offences under NDPS

Act qua Petitioner has not framed hitherto.

6. MAIN PRAYER:

In the circumstances it is, therefore, most humbly and

respectfully prayed thatthis Hon'ble Court may graciously

be pleased to:
 a. Grant the petitioner Special Leave to Appeal against

the impugnedfinal order and judgment dated ______

passed by the Hon'ble HighCourt of Delhi. No______.

b. Pass such further and other orders as this Hon'ble

Court may deem fit and proper in the facts and

circumstances of the case.

7. PRAYER FOR EX-PARTE INTERIM RELIEF: -

Pending disposal of the present special leave to appeal, it

is respectfully prayed that this Hon'ble Court may be

pleased to: -

A. Grant interim bail to the Petitioner during the

pendency of the present Special Leave Petition in

terms of conditions imposed to the satisfaction of the

Ld. Special Judge (NDPS Act), _____ in NDPS case

No._______ arising out of FIR No. ________

registered at P.S.______
B. Pass such other and further orders, as this Hon'ble

Court may deem fit and proper in the facts and

circumstances of the case.

 IN THE SUPREME COURT OF INDIA
[ORDER XXII RULE 2(1)]
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2021

WITH PRAYER FOR INTERIM RELIEF

IN THE MATTER OF: POSITION OF PARTIES

In Trial In High Court In this Court

Court
Amir alias Saleem Petitioner Petitioner
S/o Shamshad
R/o D- 28, Block – D
New Seelampur, Garhi Mendu,
Delhi
Versus

1. State (Govt of NCT Of Respondent Respondent

Delhi)
Through Standing Counsel
Supreme Court Of India

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA.

TO,

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE ABOVE-NAMED
PETITIONERS

MOST RESPECTFULLY SHEWETH:

1. By the present Petition for Special Leave, the Petitioner seeks to

challenge theimpugned order dated 03.08.2021 passed by the

Hon’ble Delhi High Court erroneously dismissing the Crl.Revision

Petition bearing Crl. Rev. Petition 1205/2019 filed by the petitioner

under Section 397/401 of the Cr.P.C. in relation to an alleged

offence under Section 25 Arms Act.

2. QUESTIONS OF LAW:

The following substantial questions of law of public importance

arise in the present case for kind consideration of this Hon’ble

Court:

(a) Whether an accused can be awarded an enhanced sentence without

following the procedure laid down in section 211(7), 248 (3) and

298 (3) Cr.P.C?

(a) Whether section 211, 248 and 298 Cr.P.C which provide for

enhanced sentence on subsequent conviction, also allow for cases

where the accused is undertrial and has a presumption of innocence

in his favor, to be taken into consideration for awarding an

enhanced sentence upon his 1st conviction?

 (b) Whether the Petitioner’s sentence ought to have been reduced to

the period undergone in view of the law settled by this Hon’ble

Court in the matter of Samir Ahmed Rafiq Ahmed Ansari vs. State

of Gujarat (2019 13 SCC 799)

(c) Whether the High Court was bound be the decision of a coordinate

bench in Chotu kumar @ Chotu Fauji vs. State of NCT of

Delhi((2021) 277 DLT 333) Where in it had been held that

previous involvements where the accused is undertrial cannot be

taken into consideration for determining the quantum of sentence

as presumption of innocence of an undertrial is human right?

3. DECLARATION IN TERMS OF RULE 2(2):-

The Petitioner state that he had not filed any other Petition against

the said Final Orderdated 03.08.2021 passed by the Hon’ble Delhi

High Court in Crl. Rev. Petition 1205/2019 filed by the petitioner

herein.

4. DECLARATION IN TERMS OF RULE 4:-

The annexures P-1 to P-9produced along with the Special Leave

Petition are true copies of their pleadings/documents which formed
part of the record of the case in the Court below against whose
Order the leave to appeal is sought for this Petition.
GROUNDS
The Petitioners seeks special leave of this Hon’ble Court to appeal

against the impugned judgment on the following amongst other

grounds each of which is in the alternative and without prejudice to

one another:

A. That in the case of Samir Ahmed Rafiq Ahmed Ansari vs.

State of Gujarat (2019 13 SCC 799), the petitioner was found

in possession of one country made revolver and multiple

cartridges. This Hon’ble Court had reduced the sentence of the

petitioner therein to the period already under gone ie. 1 ½

years. This Hon’ble Court had held as under:-

8. The question falling for consideration is that what is the

offence for which the appellant is to be convicted for the

possession of the country made pistol loaded with live

cartridges and for possession of two other live

cartridges. Section 3 deals with licence for acquisition and

possession of firearms and ammunition. As per Section

3(1) no person shall acquire, have in his possession, or carry

any firearm or ammunition unless he holds a licence issued in

accordance with the provisions of the Arms Act and the Rules
 made thereunder. Contravention of Section 3 is punishable

under Section 25(1B)

(a) with imprisonment for a term which shall not be less than one

year but which may extend to three years and also be liable to

fine. Both the Courts recorded concurrent findings that the

appellant was found in possession of country made pistol loaded

with live cartridges and in possession of two other live cartridges

which act is clearly in violation of Section 3 of the Act. It is not

the case of the appellant that he has a licence for possession of

country made pistol. The possession of the country made pistol

without licence is punishable under Section 25(1B)(a) of the

Arms Act. The appellant is said to have undergone the sentence of

imprisonment for 1 ½ years (vide this Court order dated

17.10.2016).

9. In the result, the conviction of the appellant under Section

25(1AA) of the Arms Act is modified to Section 25(1B)

(a) and the sentence of imprisonment is modified to the period already

undergone. The appellant is on bail. His bail bonds shall stand

discharged.
10. THE APPEALS ARE PARTLY ALLOWED.

b. The petitioner has been convicted for being found in possession of

one Country made revolver and 2 live cartridges. He has also

served over 1 ½ years sentence and therefore, in view of the

judgment delivered by this Hon’ble Court in Samir Ahmed

Rafiq Ahmed Ansari vs. State of Gujarat (2019 13 SCC 799),

the petitioner’s sentence also ought to be reduced to the period

undergone by the Hon’ble High Court

C. The Hon’ble High Court has referred to the said decision, however,

has concluded by giving a finding on the correctness of the sub-

section under which the petitioner has been convicted and not

taken into consideration that the sentence of the accused was

reduced to period undergone and the same benefit ought to have

been extended to the petitioner as well.

D. That the Hon’ble High Court has recorded that the grievance of the

petitioner is the harshness of the sentence awarded to him,

However, the finding has been given on the correctness of the

sub-section under which he has been convicted and no finding has

been given on the plea raised by the petitioner regarding the

harshness of the sentence awarded to him.

E. That as per section 211(7), 248 (3) and 298(3) Cr.P.C, only

those involvements of the petitioner where he has been convicted

can be taken into consideration, for awarding an enhanced

sentence and that also after a charge has been framed for such

enhanced sentence in accordance with section 211 (7) and the

previous conviction has been proved. It is pertinent to mention that

neither was any charge framed against the petitioner for any enhanced

sentence nor was any previous conviction proved against the

petitioner. Further, the petitioner is undertrial in all his previous

involvements and therefore, they cannot be taken into consideration

for awarding sentence. Therefore, the Hon’ble High Court ought not

to have taken into consideration the previous involvements of the

petitioner while dismissing the revision petition.

F. That the Hon’ble High Court ought to have followed the decision

rendered by a coordinate bench in the case of Chotu kumar @

Chotu Fauji vs. State of NCT of Delhi((2021) 277 DLT

333)where it was held that:-

G. That the ratio of the said decision lays down that no enhancement

of sentence is permitted on the basis of previous involvements

where the accused is undertrial as that would violate the basic

human right of presumption of innocence. It is pertinent to

 mention that the petitioner is also undertrial in his previous

involvements and to take such involvements into consideration

for awarding a sentence in the present case would violate the

petitioner’s right to presumption of innocence.

GROUNDS FOR INTERIM RELIEFS:

i. That the petitioner has already undergone a sentence of one and a

half years and therefore has served the sentence warranted in view

of Samir Ahmed Rafiq Ahmed Ansari vs. State of Gujarat (2019 13

SCC 799)

ii. That any further detention of the petitioner would result in him

serving a sentence in excess of the sentence warranted for the

offence committed by him.

5. MAIN PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court

may graciously be pleased to:

(a) grant Special Leave to Petition against the impugned Final

Order dated 03.08.2021 passed by the Hon’ble Delhi High

Court in Crl Revision Petition 1205/2019 filed by the

Petitioner herein;

(b) for such other and further reliefs as the nature of the

circumstances of the case may require.

 8. INTERIM PRAYER:

(a) To release the petitioner on interim bail in the present matter

i.e. FIR no. 42/2017, registered at PS Crime Branch under

sections 25 Arms Act during the pendency of the present

petition.

b). for such other and further reliefs as the nature of the
circumstances of the case may require;

ASHISH BATRA
ADVOCATE FOR THE PETITIONER
NEW DELHI
DATED:20.10.2021
 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRMP. No. of 2021
IN
SPECIAL LEAVE PETITION (CRL) NO. OF 2021

IN THE MATTER OF:

AMIR @ SALEEM … PETITIONER

VERSUS

STATE OF N.C.T OF DELHI ...RESPONDENT

APPLICATION FOR EXEMPTIONFROM FILING CERTIFIED

COPY OF THE IMPUGNED JUDGMENT DATED 03.08.2021 –

TO

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF INDIA.
THE HUMBLE PETITION OF THE
PETITIONER ABOVE-NAMED
MOST RESPECTFULLY SHEWETH:

1. That the Petitioner is filing the accompanying Special Leave Petition

against the Impugned Final Order dated 03.08.2021 passed by a

 Hon’ble High Court of Delhi at New Delhi in Criminal Revision

Petition No. 1205 of 2019 filed by the petitioner herein.

2. That the certified copy of the impugned Order is not readily available

with the Petitioner.

3. That the present application for seeking exemption is made bonafide

and in the interest of justice. Further, no prejudice would be caused to

the Respondent if the instant application is allowed

PRAYER

In the circumstances, it is therefore, most humbly prayed that this

Hon’ble Court may graciously be pleased to:

(a) Exempt the Petitioners from filing certified copy of the impugned

judgment dated 03.08.2021 passed by the Hon’ble High Court of

Delhi at New Delhi in Criminal Revision Petition No. 1205 of

2019;

(b) Pass such other and further order or orders as this Hon’ble Court

may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS

IN DUTY BOUND SHALL EVER PRAY.

 Filed by

(ASHISH BATRA)
Advocate for the Petitioner

FILED ON: . .2021

New Delhi