Bhaben Bora Vs The State of Ap

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GAHC040017562024

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : BA/128/2024

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Bhaben Bora

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Son of Shri Ganeswar Bora, permanent resident of Simalguri, PO Kokchabari, PS Bihpuria, Lakhimpur District, Assam and present resident of Village Division 4, near MLA Bunglow, PO Itanagar, PS Niti Vihar, Papum Pare District, Arunachal Pradesh.

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VERSUS

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The State of AP represented by the PP of AP

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Advocate for the Petitioner : Pritam Taffo, V Mandal,Minter Karbak,Eho Menjo

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Advocate for the Respondent : P P of AP,

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BEFORE HONOURABLE MR. JUSTICE KARDAK ETE

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ORDER

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Date : 15-01-2025

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Heard Mr. P. Taffo, learned counsel for the applicant. Also heard Mr.

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T. Ete, learned Additional Public Prosecutor for the State.

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This is an application under Section 483 of BNSS 2023 praying for grant of bail to the accused, namely, Smti Deepika Borah in connection

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with Niti Vihar P.S. case No. 23/2024 under Section 21(b)/27A of NDPS Act, 1985.

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The case leading to filing of this bail application is that on 13.07.2024, a written complaint was filed by Inspector Niti Vihar Police Station before the Niti Vihar Police Station, Itanagar, Arunachal Pradesh stating that one person suspected to be drug-peddler was in possession of drugs and roaming around at Niti Vihar area. The search and seizure were made in the rented house of the present accused.

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The accused was arrested on 13.07.2024, from her rented house on the allegation that 14.70 grams of suspected heroin was seized from her. After the arrest of the accused on 13.07.2024, she was produced on 14.07.2024, and accordingly, remanded to police custody on the same day. The accused now is in judicial custody, since then.

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Upon receipt of the above FIR, Niti Vihar P.S Case No.23/2024 was registered under Section 21(b)/27A of NDPS Act, 1985.

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Mr. P. Taffo, learned counsel for the applicant, while not making any submission on the merit, submits that accused having been remained in the custody for more than 180 days, prays for release of the accused, namely, Smti Deepika Borah on default bail, in view of the provision of Section 36A(4) of the NDPS Act.

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Mr. T. Ete, learned Additional Public Prosecutor for the State fairly submits on instruction from the I.O that no charge sheet has been filed till

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date, nor any report of extension is filed before the appropriate court, therefore, accused is entitled for default bail under Section 187 subSection 3 of BNSS, 2023 read with provision of Section 36A(4) of the NDPS Act.

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Perused the case diary as produced by the learned Additional Public Prosecutor.

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As placed by the learned Additional Public Prosecutor for the State, Mr. T. Ete in the case of M. Ravindra Vs. Intelligence Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485 , the Hon’able Supreme Court has held that once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2) CrPC read with Section 36A(4) NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. It has further held that the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the

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bail application is pending before a higher Court.

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Having considered the right of the accused for default bail in view of the provisions of Section 187 (3) of BNSS, 2023, read with Section 36A(4) of the NDPS Act, 1985, I deemed it appropriate to allow this bail application as the accused is in the judicial custody for more than 180 days and no chargesheet has been filed.

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On considering the submission of the learned Additional Public Prosecutor, who has fairly, on instruction, submits that no charge sheet has been filed nor any report of extension has been filed before the Court and in view of the Judgment of the Hon’ble Supreme Court, as noted above, the accused, namely, Smti Deepika Borah is admitted to bail and she shall be released on default bail forthwith on furnishing a surety to the satisfaction of the learned Special Judge, NDPS, Yupia.

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It is needless to observed that learned Special Judge, NDPS shall impose any condition as may be deem fit.

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JUDGE

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Comparing Assistant

Bhaben Bora v. The State of Ap

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Bhaben Bora v. The State of Ap

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