Kalidas Mukherjee, J.

1. This is an application under section 401 read with section 482 of the Code of Criminal Procedure assailing the order dated 3-11-2011 passed by learned Additional Sessions Judge, Barasat in N. Case No. 112/10 under section 20 (b) (1) of the Narcotic Drugs and Psychotropic Substance Act, 1985 thereby rejecting the prayer of the petitioner dated 3.11.2011 for furnishing bail bond. The learned Counsel appearing for the petitioner submits that once bail is granted it will remain open until the bail bond is furnished by the accused. It is contended that it is the indefeasible right of the accused and it cannot get extinguished. In this connection the learned Counsel has referred to the provision of section 167(1) Explanation; sections 440. 441 of the Code of Criminal Procedure. Learned Counsel has referred to and cited the decisions reported in 2001 Cri. L. J. 1832 (Uday Mohanlal Acharya vs. State of Maharashtra); AIR 1993 SCC 1 (Aslam Baba Lal Desai vs. State of Maharashtra).

2. Learned Counsel appearing for the State has opposed the prayer made by the accused petitioner. It is contended that the indefeasible right was availed of by the accused petitioner when the application for bail was filed and the same was granted by the learned Magistrate. It is submitted that the order of bail was granted on 4-10-2010 and the bail bond was furnished on 3.11.2011. It is further contended that in the meantime the charge-sheet was submitted. It is submitted that the indefeasible right of the accused having been availed of, the same stood extinguished with the submission of charge-sheet and the failure of the accused petitioner to furnish bail bond before submission of charge-sheet. The learned Counsel in this connection has referred to the observation made by the Honble Apex Court in paragraph Nos. 4, 5 and 6 in the case of Uday Mohanlal Acharaya vs. State of Maharashtra (supra).

3. In the instant case it appears from the averment made in para 3 of the application that as the charge-sheet was not submitted in time the petitioners got statutory bail vide order dated 04.10.2010 passed by the learned Additional Sessions Judge. In Para 4 of the application it has been stated that the petitioners could not furnish bail bond and it was submitted only on 3.11.11.

4. The accused persons filed an application on 3.11.11. before the learned Court below stating that the accused persons intended to submit bail bond as per order dated 04.10.10. The learned Court below vide order dated 3.11.11 observed that on 4.10.10 due to non submission of charge sheet under section 167(2) Cr, P.C the accused persons were granted bail, but none of the accused persons furnished bail bond in terms of the said order dated 04.10.10. The learned Judge further recorded that since the charge-sheet in the meantime had already been submitted against the accused persons, the right of the accused persons to be released on bail as per order dated 04.1010 stood extinguished as per observation made by the Honble Apex Court as reported in 2001 Cri, L.J. 1832 [Uday Mohanlal Acharaya vs. State of Maharashtra] (supra).

5. Under such circumstances, the learned Court below refused the prayer of the accused persons to be released on bail.

6. The learned Counsel of both sides relied on the decision reported in 2001 Cri.L.J. 1832 [Uday Mohanlal Acharaya vs. State of Maharashtra] (supra).

7. In paragraph 8(5) at page 1843 of the aforesaid decision it has been observed by the Honble Apex Court as follows;-

5........if the accused is unable to furnish bail as directed by the Magistrate, then the conjoint reading of the explanation 1 and proviso to subsection 2 of section 167, the continued custody of the accused beyond specific period in Paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and charge sheet is filed then the so called indefeasible right of the accused would stand extinguished.

8. In the instant case the bail was granted on 04.10.10 and the bail bonds were furnished on 03.11.11 and in the meantime the charge-sheet was submitted. In the case of Monotosh Ghosh vs. The State of West Bengal reported in 2011 (4) AICLR Page 115, the Honble Single Judge of this Court in a similar situation observed in Paragph 18 as follows;-

18. In the instant case the bail was granted on February 25, 2011. The petitioner approached the Court for furnishing of the bond at 3.15 p.m. on February 28, 2011. By that time the charge sheet was submitted in presence of the accused who was produced from custody. I fully agree with Mrs. Bhattacharya when she contended that once the bail was granted the same was valid until it was recalled and/or cancelled. Section 167(2) empowers the Court to grant bail in the case of nonsubmission of the charge-sheet. Once the charge sheet had been submitted before the accused was released on bail upon completion of the formalities the right to get release stood extinguished as observed by the learned Judge in the case of Gyan Chandra Agrawal (supra). In the case of Uday Mohanlal Acharya (supra) the Apex Court observed that on expiry of the period specified in paragraph (a) of proviso (2) sub-section 167 if the accused files an application for bail and offers to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. In the instant case the accused was enlarged on bail and was asked to furnish bail bond. Before he could submit bail bond charge-sheet was submitted. The Apex Court observed, "the right of an accused to be released on bail after expiry of the maximum period of detention provided under section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said section". This view of the Apex Court was fortified by the Constitution bench decision in the case of Sanjoy Dutta reported in 1995 Criminal Law Journal Page - 477 wherein the Apex Court observed, "if that right had accrued to the accused but it remained unenforced till the filing of the Challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because section 167 Cr. P.C. ceases to apply." Relying on the said proposition of law I am of the view that certainly right accrued on account nonfiling charge sheet within the statutory period, in view of nonfiling of the bail bond as per direction of the learned Magistrate such right stood extinguished once the charge sheet was submitted in the mean time.

9. There is another aspect of the matter. On 20.09.2011, that is, prior to passing of the order impugned by the learned Court below, the application for bail was filed by these accused petitioners and the learned Additional Sessions Judge 6th Court Barasat observed that the quantum of contravened materials was weighing about 5 Kgs. of ganja allegedly recovered and charge sheet had already been filed against the accused persons and the dates of trial had been fixed. Under such circumstances, the learned Court below rejected the prayer for bail of the accused persons. So it appears that the prior to the passing of the impugned order dated 03.11.11 the earlier prayer for bail of the accused petitioners was rejected.

10. Therefore, it is clear that bail was granted because of the non-submission of the charge-sheet, but the accused persons could not furnish bail bond and the same was furnished after one year and in the meantime the charge-sheet had already been filed. As per the observation made by the Honble Apex Court in paragraph 8(5) of the aforesaid decision it is clear that the learned Court below was justified in holding that the indefeasible right of the accused stood extinguished.

11. Moreover, when the prayer for bail on 20.09.11 was rejected and it having not been challenged before the appropriate forum, the subsequent impugned order refusing the prayer for release on bail on the basis of circumstances prevailing one year back, cannot be assailed. There is no merit in this application and the same stands dismissed. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.