STATE OF SIKKIM vs Bishal Saha
- Court
- High Court of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Revisional Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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CRL. REV. P. No. 04 of 2025
State of Sikkim .... Revisionist
versus
Bishal Saha ,
S/o Shiv Dayal Shah,
Resident of Lower Bazaar, Rangpo,
P.O. and P.S. Rangpo,
District Pakyong, Sikkim,
Pincode: 737132. .... Respondent
Revision under Sections 438 and 442 of
the Bhartiya Nagarik Suraksha Sanitha, 2023
[against the Order of bail dated 27.8.2025 passed by the Ld. Special Judge Sikkim
(NDPS, 1985), Pakyong, Sikkim in Criminal Misc. Case (NDPS) No. 30 of 2025]
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Appearance:
Mr. Thinlay Dorjee Bhutia, Public Prosecutor and Mr. Yadev Sharma,
Additional Public Prosecutor with Ms Pema Bhutia, Assistant Public
Prosecutor for the Revisionist.
Mr. Pramit Chettri and Mr. Arun Rai, Advocates, for the Respondent.
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th
Date of Hearing : 26 June, 2026
th
Date of Judgment : 30 June, 2026
th
Date on which uploaded: 30 June, 2026
Bhaskar Raj Pradhan, J.
The respondent is an accused in a case of the
prosecution alleging that 21.34 gms of brown sugar (heroin) which
falls under the category of „intermediate quantity‟ under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was
recovered and seized from his possession. The offence is punishable
Crl. Rev. P. No. 04 of 2025
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State of Sikkim vs. Bishal Saha
with imprisonment which may extend up to ten years but does not
exceed ten years. On completion of the investigation, the
prosecution filed the charge-sheet/police report on 14.08.2025
before the learned Chief Judicial Magistrate, Pakyong, instead of the
Court of the learned Special Judge (NDPS, 1985), Pakyong, Sikkim
(the learned Special Judge) which had been duly constituted.
2. The State of Sikkim challenges the impugned order
dated 27.08.2025 passed by the learned Special Judge. The
impugned order held that since the charge-sheet was not filed
before the competent Special Judge within sixty days, the
prosecution has failed to comply with the statutory requirement.
Consequently, it was held that the respondent was entitled to be
released on default bail under Section 187(3)(ii) of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS, 2023). It was further held
that default bail could not be denied merely on the ground that the
charge-sheet was filed before the Court of the Chief Judicial
Magistrate which did not have jurisdiction to take cognizance of the
offence.
3. The learned Public Prosecutor submits that the
prosecution had completed its investigation within the period of sixty
days and merely because it filed the charge-sheet before the Court
of the learned Chief Judicial Magistrate, it could not be presumed
that it had taken more than sixty days to complete the investigation.
4. The learned Counsel for the respondent referred to the
provision of section 36A of the NDPS Act and submitted that it
Crl. Rev. P. No. 04 of 2025
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State of Sikkim vs. Bishal Saha
required the charge-sheet to be filed before the learned Special
Judge, NDPS Act and the Court of the learned Chief Judicial
Magistrate did not have the jurisdiction to take cognizance of the
offence under the NDPS Act.
5. The necessary facts for disposal of the present revision
petition preferred under Sections 438 and 442 of the BNSS, 2023 is
not in dispute. On 15.06.2025, the respondent was apprehended at
around 21:30 hours. On 16.06.2025, he was remanded to police
custody by the learned Judicial Magistrate from 16.06.2025 to
17.06.2025. On 14.08.2025, charge-sheet was filed by the
Investigating Officer before the learned Chief Judicial Magistrate. On
the same day, the respondent filed a bail application under Section
187(3)(ii) of the BNSS, 2023 before the Court of the learned Special
Judge. On 21.08.2025, the learned Chief Judicial Magistrate
committed the case to the learned Special Judge (NDPS), Pakyong,
since the offence involved was exclusively triable by the Special
Court. Accordingly, the entire case records were sent to the Court of
the learned Special Judge. The learned Special Judge on 21.08.2025
recorded receipt of the case files from the learned Chief Judicial
Magistrate and listed the matter for hearing on charge on
25.09.2025. The application for default bail filed on 14.08.2025 was
still pending before the learned Special Judge. The learned Special
Judge, thereafter, passed the impugned order dated 27.08.2025 on
the application for default bail granting bail to the respondent.
6. On hearing the learned counsel for the parties, two
questions arise for consideration. The first is, whether the charge-
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State of Sikkim vs. Bishal Saha
sheet forwarded by the Investigating Officer to the learned Chief
Judicial Magistrate and not before the learned Special Court on
14.08.2025, could be considered to defeat the indefeasible right of
the respondent? The second is, what would be the status for
application for bail filed by the respondent before the learned
Special Court on 14.08.2025 before the indefeasible right in his
favour accrued to him on the midnight of 14.08.2025?
7. Section 36A(1) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) provides for offences triable by
Special Courts. It begins with a non obstante clause
“ Notwithstanding anything contained in the Code of Criminal
Procedure, 1973” and provides that all offences under this Act which
are punishable with imprisonment for a term of more than three
years shall be triable only by the Special Court constituted for the
area in which the offence has been committed.
8. Section 36(1)(b) provides that where a person accused
of or suspected of the commission of an offence under this Act is
forwarded to a Magistrate under sub-section (2) or sub-section (2A)
of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974),
such Magistrate may authorise the detention of such person in such
custody as he thinks fit for a period not exceeding fifteen days in the
whole where such Magistrate is a Judicial Magistrate and seven days
in the whole where such Magistrate is an Executive Magistrate:
provided that in cases which are triable by a Special Court where
such Magistrate considers – when such person is forwarded to him
as aforesaid; or upon at any time before the expiry of period of
Crl. Rev. P. No. 04 of 2025
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State of Sikkim vs. Bishal Saha
detention authorised by him, that the detention of such person is
unnecessary, he shall order such person to be forwarded to the
Special Court having jurisdiction.
9. Section 36A(1)(c) provides that the Special Court may
exercise, in relation to the person forwarded to it under clause (b),
the same power which a Magistrate having jurisdiction to try a case
may exercise under section 167 of the Code of Criminal Procedure,
1973 (2 of 1974), in relation to an accused person in such case who
has been forwarded to him under that section.
10. Section 36A(1)(d) provides that a Special Court may,
upon perusal of police report of the facts constituting an offence
under the Act or upon complaint made by an Officer of the Central
Government or a State Government authorised in his behalf, take
cognizance of that offence without the accused being committed to
it for trial.
11. In Supreme Court Legal Aid Committee representing
1
Undertrial Prisoners vs. Union of India and Others , the Supreme Court
opined that on a conjoint reading of section 36 and section 36-
A(1)(a), it becomes clear beyond any manner of doubt that once a
Special Court (or more than one) has been constituted for an area
or areas in which the offence has been committed, than
notwithstanding anything contained in the Code, the Special Court
alone will have jurisdiction and all other Courts exercising
jurisdiction prior to the constitution of the Special Court will cease to
1
(1994) 6 SCC 731
Crl. Rev. P. No. 04 of 2025
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State of Sikkim vs. Bishal Saha
have jurisdiction. It was also held that it was clear from the
provision of section 36-A(1)(a) and (d) that the Special Court can
take cognizance of an offence without the accused being committed
to it for trial.
12. Section 36A, therefore, makes it clear that once a
Special Court has been constituted, it is that Special Court alone,
which has exclusive jurisdiction to take cognizance of the offence on
receipt of the police report and try the offence as mentioned therein.
13. Section 187 of the BNSS, 2023 provides procedure when
investigation cannot be completed in twenty-four hours. Section
187(3) provides that the Magistrate may authorise the detention of
the accused person, 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 accused person in custody under this
sub-section for a total period exceeding –
“(i) ....
(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
XXXV for the purposes of that Chapter.”
14. It is, therefore, evident that the prosecution ought to
have filed the charge-sheet/police report before the Special Court
which had the exclusive jurisdiction to try the offence against the
respondent. However, admittedly, the charge-sheet/police report
was filed before the learned Chief Judicial Magistrate on 14.08.2025
Crl. Rev. P. No. 04 of 2025
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State of Sikkim vs. Bishal Saha
who did not have the jurisdiction to try the offences against the
respondent. The order dated 14.08.2025 passed by the learned
Chief Judicial Magistrate records the fact of seeing the charge-sheet
filed by the prosecution and taking cognizance of the offences. Both
the filing of the charge-sheet before the Chief Judicial Magistrate
and the taking of cognizance by the Chief Judicial Magistrate were
illegal.
15. In view of the judgment of the Supreme Court in
Enforcement Directorate, Government of India vs. Kapil Wadhawan &
2
Another , the sixty days remand period under section 167 Cr.P.C.
ought to be computed from the date when a Magistrate authorises
remand. The learned Judicial Magistrate, in the present case,
authorised remand on 16.06.2025. Thus, the sixty days period
would end on 14.08.2025. There is no dispute of this fact. The
application for default bail was also admittedly filed by the
respondent on 14.08.2025 before the jurisdictional Special Judge
(NDPS, 1985), Pakyong. However, on 14.08.2025, the indefeasible
right of the respondent for the default bail had not yet accrued in his
favour until the midnight of 14.08.2025. Hence, it is certain from
the midnight of 14.08.2025, the respondent‟s indefeasible right for
default bail accrued in his favour and, as the application for default
bail filed on 14.08.2025 had neither been returned as premature nor
rejected, he was entitled to the bail from then onwards. The
unnecessary committal proceedings done by the learned Chief
Judicial Magistrate could not have affected the respondent‟s right to
2
(2024) 7 SCC 147
Crl. Rev. P. No. 04 of 2025
8
State of Sikkim vs. Bishal Saha
the default bail. Section 193(3)(i) of the BNSS, 2023 provides that
as soon as the investigation is completed, the officer in charge of
the police station shall forward, including through electronic
communication to a Magistrate empowered to take cognizance of
the offence on a police report, a report in the form as prescribed.
The Court of the learned Chief Judicial Magistrate before whom the
police report was forwarded was not the Magistrate empowered to
take cognizance. Admittedly again, the charge-sheet was sent to the
Court of the learned Special Judge who was empowered to take
cognizance only on 21.08.2025 when the application for default bail
filed on 14.08.2025 was still pending.
16. In view of the judgment passed in the Supreme Court in
3
Uday Mohanlal Acharya vs. State of Maharashtra
, 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. Therefore, the learned Special
Judge correctly interpreted the provision for default bail and granted
it in favour of the respondent on 27.08.2025.
4
17. In M. Ravindran vs. Directorate of Revenue Intelligence ,
the Supreme Court held that the moment accused files application
for bail on default of investigating agency in filing charge-sheet
within prescribed period and offers to furnish bail bonds as directed
by Court, he is deemed to have “availed of” his indefeasible right to
3
(2001) 5 SCC 453
4
(2021) 2 SCC 485
Crl. Rev. P. No. 04 of 2025
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State of Sikkim vs. Bishal Saha
be released on bail. “Availed of” means actual release from custody
by furnishing bail and complying with terms and conditions of bail
order within time stipulated by Court. Once the right to default bail
has become indefeasible by filing application when right accrues, it
continues, irrespective of pendency of bail application or subsequent
filing of charge-sheet, additional complaint, or Public Prosecutor‟s
report seeking extension of time. Court has to release him on bail,
uninfluenced by merits of the case but Court cannot suo motu grant
bail without ascertaining whether accused is ready to furnish bail
bond or not.
18. Therefore, it is held in answer to the two questions
posed before, that the charge-sheet forwarded by the Investigating
Officer to the learned Chief Judicial Magistrate and not before the
learned Special Judge, contrary to the mandate of section 36A of the
NDPS Act and section 187(3)(ii) of the BNSS, 2023 could not defeat
the indefeasible right of the respondent to be granted the default
bail. It is further held that the application for default bail which was
pending before the learned Special Judge on 14.08.2025 could be
considered by the learned Special Judge after the respondent‟s
indefeasible right accrued in his favour.
19. It was argued that the prosecution did not take any
further time beyond the stipulated time of sixty days for completing
the investigation since the charge-sheet was filed within that time
albeit before the Court of the learned Chief Judicial Magistrate.
However, it is held that when section 36A of the NDPS Act mandated
the filing of the charge-sheet/police report and taking of cognizance
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State of Sikkim vs. Bishal Saha
of the offence under the NDPS Act only by the Special Judge
constituted under the NDPS Act, it could not have been done in any
other manner. The act of the prosecution forwarding the charge-
sheet to the learned Chief Judicial Magistrate was non-compliance of
the mandate of the law. As the charge-sheet was forwarded by the
learned Chief Judicial Magistrate only on 21.08.2025 to the Court of
the learned Special Judge (NDPS, 1985), by that time the
indefeasible right had already accrued in favour of the respondent.
Further, he had also applied for default bail and was prepared to
furnish bail, it was incumbent upon the learned Special Judge to
grant it. I am inclined to hold that section 187(3)(ii) of the BNSS,
2023 is a provision meant for the benefit of the accused person and
therefore, an interpretation which advances the cause of personal
liberty should be accepted.
20. Section 438 of the BNSS, 2023 corresponds to Section
397 of the Cr.P.C. The High Court may call for and examine the
records of the proceedings of an inferior criminal Court for the
purposes of satisfying itself as to the correctness or legality or
propriety of the impugned order. The impugned judgment has
correctly appreciated the relevant provisions and applied the
judgments passed by the Supreme Court. I am of the firm view that
the impugned judgment was correct, legal and proper. It calls for no
interference. Accordingly, the criminal revision petition is dismissed.
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State of Sikkim vs. Bishal Saha
21. Copy of this judgment be sent to the Court of the
learned Special Judge (NDPS 1985), Pakyong, for information.
(Bhaskar Raj Pradhan)
Judge
Approved for reporting: Yes/No
Internet: Yes/No
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