P.K Lohra, J.:— Being arrested in connection with FIR No. 36/2016 of Police Station, Bekaria, Udaipur for offence under Section 8/15 of the N.D.P.S Act, accused-petitioner has laid this bail application under Section 439 Cr.P.C
2. Precisely, petitioner has taken shelter of default clause for grant of bail envisaged under sub-section (2) of Section 167 Cr.P.C Attempt made by the petitioner in this behalf before the Special Judge, N.D.P.S Cases, Udaipur (for short, ‘learned trial Court’) proved abortive and the learned trial Court by its order dated 03.10.2016 declined the prayer of the petitioner.
3. Learned counsel for the petitioner submits that petitioner was arrested on 02.04.2016 and charge-sheet in the matter was filed after expiry of 180 days' i.e on 03.10.2016, therefore, petitioner is entitled for bail under proviso to sub-section (2) of Section 167 Cr.P.C Learned counsel further submits that 180 days' expired on 29.09.2016 and bail application on his behalf was laid before the learned trial Court on 30.09.2016 and undeniably on the crucial day, charge-sheet was not filed which has created indefeasible right in his favour for grant of bail. In support of his contention, learned counsel has placed reliance on a decision of Supreme Court in Union of India v. Nirala Yadav (2014) 9 SCC 457.
4. Per contra, learned Public Prosecutor submits that learned trial Court, in its discretion, has declined prayer for bail, therefore, no interference is warranted.
5. Having heard learned counsel for the petitioner and taking into account the mandatory provision contained under sub-section (2) of Section 167 Cr.P.C, I feel persuaded to grant indulgence to the petitioner.
6. My aforesaid view is also fortified by judgment in Nirala Yadaav (supra) wherein Supreme Court has said that the right accrued to an accused under proviso to sub-section (2) of Section 167 Cr.P.C is indefeasible, non-discretionary and mandatory in nature.
7. Consequently, the bail application under Section 439 Cr.P.C is allowed and it is ordered that the accused-petitioner, Om Prakash S/o Ganga Ram arrested in connection with F.I.R No. 36/2016, Police Station Bekaria, Udaipur may be released on bail; provided he furnishes a personal bond of Rs. 50,000/- with two surety bonds of Rs. 25,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.