Rajasthan High Court - Jaipur
Hira Lal vs State Of Rajasthan on 10 February, 2005
Equivalent citations: RLW2005(3)RAJ2014
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. By the instant criminal second bail application under Section 439 read with Section 167(2) CrPC, petitioner Hira Lal seeks bail on the ground that for a period of 60 days from the date of his production before the Magistrate, the police failed to file the challan and, therefore, the applicant filed an application seeking bail on the ground that the Magistrate is not competent to authorise detention of the petitioner after 60 days from the date he was initially produced before the Magistrate. The bail application filed by the applicant came to the rejected by the learned Sessions Judge vide order dated 1.12.2004 holding therein that the period for filing the challan is 90 days and not 60 days.
2. I have heard learned counsel for the petitioner and the Public Prosecutor for the State. Carefully gone through the order impugned and the police investigation diary (case diary).
3. The allegation against the petitioner is that he was found in possession of 47.200 Kgs of poppy-straw without licence or permit, which is an offence punishable under Section 8/15-B the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, "the NDPS Act"). In relation to poppy straw, the "small quantity" as provided in the Central Government Notification S.O. 1955 (E) dated 19.10.2001 and defined in Section 2(xxiiia) of the NDPS Act, is lesser than 1000 grams and "commercial quantity" is greater than 50 Kg. As defined in Section 2(viia) of the NDPS Act. The contraband poppy straw alleged to have been recovered from the petitioner is greater than the "small quantity" but lesser than the "commercial quantity." The punishment as provided under Section 8/15-B of the NDPS Act for contravention of the provision involving quantity lesser than commercial quantity but greater than small quantity is regorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.
4. Section 36-A(1)(c) of the NDPS Act provides that the Special Court may exercise, in relation of 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 (for short the Code hereinafter) in relation to an accused person in such case who has been forwarded to him under that section. Sub-section (2) of Section 167 of the Code provides that the Magistrate to whom an accused person is forwarded under this section ma, 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 (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 the 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 then ten years; (ii) sixty days, where the investigation relates to any other offence.
5. Sub-section (4) of Section 36A of the NDPS Act provides that in respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for the offence involving commercial quantity the references in Sub-section (2) of Section 167 of the Code thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days."
6. Thus, so far as proviso (ii) to Sub-section (2) of Section 167 of the Code is concerned, Sub-section (4) of Section 36A of the NDPS Act does not make any change with regard to the period for which a Magistrate is authorised to order detention of an accused person in the custody.
7. In the instant case, the offence alleged against the accused-petitioner is under Section 8/15-B of the NDPS Act, which is punishable with rigorous imprisonment for a term which may extend to 10 years and a fine of one lakh rupees. Thus, for this offence, and accused person can be punished with the rigorous imprisonment varying from minimum to maximum for a term upto 10 years, but cannot be punished for a terms more than 10 years. The case of the petitioner falls under proviso (ii) to Sub-section (2) of Section 167 of the Code. Admittedly, the police failed to complete investigation and filled the challan against the petitioner for a period of 60 days from the date of his initial production before the Magistrate authorising his detention. The offence punishable is with rigorous imprisonment "upto ten years", as provided under proviso (ii) to Sub-section (2) of Section 167 of the Code and "not more than ten years" as provided in proviso (i) to Sub-section (2) of Section 167 of the Code wherein the expression "not less than 10 years" would mean 10 years or more. There is distinction between the expressions "upto ten years" and "not less than ten years." Wherever the clause provides the sentence "upto ten years." and "not less than ten years." Wherever the clause provides the sentence "upto ten years", it would be discretion of the Court trying the offence to sentence the accused before it for a period upto ten years or any period less than 10 years. In the case where the punishment is provided "not less than then ten years", in those case the Court trying the offence will have no jurisdiction to award lesser sentence then ten years and can award the sentence of 10 years or more.
8. This controversy came to be considered by the Hon'ble Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi , wherein the Hon'ble Apex Court observed as under:-
"From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offence, period prescribed is 60 days. Hence, in cases, where offence is punishable with imprisonment for 10 years or more, accused could be detained upto a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider Clause (i) of Proviso (a) to Section 167, it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence of which punishment could be imprisonment for less then 10 years. Under Section 386 of the IPC, imprisonment can very from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years."
9. In State of M.P. v. Rustam and Ors. (1995 (Suppl.) (3) SCC 221), the Hon'ble Supreme Court, while considering the proviso (ii) to Sub-section (2) of Section 167 of the Code and dealing with compulsive bail, held that the Court must examine the availability of the right to compulsive bail on the date it is considering the question of bail and not merely on the date of presentation of the petition for bail. The Apex Court further held that the prescribed period of ninety days or sixty days, as the case may be, would instantly commence from the date on which instantly detention was authorised by the Magistrate and clear ninety or sixty days, as the case may be, have to expire before the right begins, entitling the accused of his indefeasible right to bail.
10. In Union of India v. Thamisharasi and Ors. , the Apex Court held that the applicability of proviso (ii) to Sub-section (2) of Section 167 of the Code is not excluded by any of the provision of the NDPS Act. The Apex Court further held as under:-
"Section 36A makes it clear that a person accused of or suspected of the commission of an offence under the NDPS act is to be forwarded to a Magistrate under Sub-section (2) or Sub-section (2-A) of Section 167 Cr.P.C; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person of forwarded to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr.P.C. in relation to an accused person forwarded to him under that section. The clear reference to the power of the Magistrate under Section 167 Cr.P.C., particularly Sub-section (2) thereof, is an indication that no part of Sub-section (2) of Section 167 of the Code if inapplicable in such a case unless there be any specific provision to the contrary in the NDPS Act. This conclusion is reinforced by some other provisions of the NDPS Act. Section 36C says that "save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973(2 of 1974) (including the provisions as to bails and bonds shall apply to the proceedings before a Special Court." This also indicates that the provisions in the Code of Criminal Procedure relating to bail and bonds are applicable to the proceedings before a Special Court under the NDPS act "save as otherwise provided in this Act." Section 51 also says that the provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of this Act, to all warrant issued and arrests, searches and seizures made under this Act. Except for Section 37 of the NDPS Act, no. other provision of the NDPS Act to exclude the applicability merely on the proviso to Sub-section (2) of Section 167 CrPC when Sub-section (2) of Section 167 of the Code is made expressly applicable by Section 36A of the NDPS Act."
11. In Sanjay Dutt v. State through Central Bureau of Investigation, Bombay II , a Constitution Bench of the Hon'ble Supreme Court held that the indefeasible right accruing to the accused on non-completion of the investigation or non-filing of challan is enforceable only prior to filing of challan and it does not survive or remain enforceable on the challan being filed, if not already availed of.
12. The expression "if already not availed of came to be considered by the Hon'ble Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra , wherein the Hon'ble Apex Court held that the indefeasible right accrued to the accused on the failure of the prosecution to file the challan within the period specified in Sub-section (2) of Section 167 of the Code and the right can be availed of by the accused if he is prepared to offer bail and abide by the terms and conditions of bail, necessarily an order of the Court has to be passed. It is, also, further clear that the indefeasible right does not survive or remain enforceable on challan being filed, it already not availed of, as has been held by the Constitution Bench in Sanjay Dutt's case (supra). The Apex Court held as under:-
The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of?" Does it mean that an accused filed as application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? 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. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would case great injustice to the accused and would defeat the very purpose of the proviso to Section 167 of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated, since the legislature has given its mandate it would be the bounden duty of the Court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed of in a manner which is capable of being abused by the prosecution."
Their Lordships further held as under:-
"In interpreting the expression "if not availed of in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to ban accused flowing from any legislative provision ought not to be defeated by a Court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to Sub-section (2) of Section 167 of the Code if the has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is order, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute- book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to Sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge an would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such could be violative of Article 21 of the Constitution."
13. Keeping in view the aforesaid decision of the Hon'ble Supreme Court, the case in hand, when examined, it is obvious that the case of the petitioner is governed by proviso (ii) to Sub-section (2) of Section 167 of the Code. Indisputably, from the initial date of authorising detention by the Magistrate, i.e. 29.9.2004, the day following his arrest by the police, the police did not complete the investigation in 60 days and on clear expiry of the period of 60 days from the date initially the Magistrate authorised the detention of the petitioner, the petitioner became entitled for compulsive bail and indefeasible right to bail accrued to the petitioner. The petitioner availed the right on the date when it accused to him by filing an application for bail before the learned Sessions Judge on 30.11.2004 and, therefore, the petitioner has availed of the indefeasible right of compulsive bail. The bail application filed by the petitioner before the learned Sessions Judge came to the dismissed on the ground that the proviso to Sub-section (4) of Section 36A of NDPS Act, there is a provision that if it is not possible to complete the investigation within the said period of 180 days the Special Court may extend the said period on the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for detention of the accused in custody beyond the said period of 180 days. In my view, in view of the aforesaid decisions of the Hon'ble Supreme Court, the learned Sessions Judge fell in error in refusing bail to the petitioner on accruing indefeasible right to bail and more particularly when such right has been availed of by the petitioner on the date when it accrued to him.
14. In the instant case, the contraband poppy-straw alleged to have been recovered from the petitioner is more than the "small quantity" but less than the "commercial quantity" and therefore, the rigor of Section 37 of the NDPS Act cannot be applied. Even otherwise, in view of the decisions of the Hon'ble Supreme Court referred to above, in such an eventuality when the police failed to complete the investigation and file challan within the stipulated period as provided under proviso to Sub-section (2) of Section 167 of the Code, the rigor of Section 37 of the NDPS Act cannot be pressed into service.
15. On perusal of the police investigation diary of the instant case, it appears that the sample taken form the alleged recovered poppy-straw was sent for analysis to the FSL but it appears that FSL report has not been received by the police and after preparing the challan, it was sought to be submitted before the Court. From the case diary, it appears that for want of FSL report, the challan was not accepted. In such a situation, the accused, who is not otherwise entitled for the bail, can claim compulsive bail on the ground of accrued indefeasible right of bail, can claim compulsive bail on the ground of accrued indefeasible right of bail to him. On account of non-completion of investigation/non-filing of challan within the stipulated period, as provided under proviso to Sub-section (2) of Section 176 of the Code and, therefore, in the case of such a nature, the Director, FSL shall ensure that the sample of contraband of narcotic drugs and psychotropic substances forwarded to them be analysed on property basis and report thereof may be made available to the investigating agency, if not earlier then at least within 45 days from its receipt. However, for some reason if the FSL report is not forthcoming within the stipulated period provided under the proviso to Sub-section (2) of Section 167 of the Code then in that situation, the investigating officer should made a request the Code for filing the FLS report subsequent to the filing of the challan and the Court, normally, should accept the challan.
16. In the instant case, the petitioner was arrested on 28.9.2004 at 7.50 PM. On being produced before the Magistrate on 29.9.2004, remand was granted to the investigation firstly upto 4.10.2004 and thereafter further remand was granted from time to time till bail application filed by him on 30.11.2004 and thereafter even on the date on which bail application became to be dismissed, i.e. on 1.12.2004. The period of detention of 60 days expired on 28.10.2004. The bail application was moved by the petition on clear expiry of 60 days from the date of initial remand order dated 29.9.2004 and the fact that till the bail application was decided by the Court below, the police did not complete the investigation and as such no challan was filed and, therefore, on 30.11.2004, or even on 1.12.2004, petitioner was entitled for compulsive bail on accruing indefeasible right to bail, which was availed by him by filing bail application.
17. Therefore, having regard to the facts and circumstances of the case, I consider it just and proper to allow this second bail application filed by the application-petitioner under Section 439 read with Section 167(2) Cr.P.C. and it is directed that petitioner Hira Lal S/o Shri Narayan Lal Teli be released on bail in FIR No. 127/2004 of Police Station, Khairoda, district Udaipur, provided he executes a personal bond for a sum of Rs. 20,000/- with two sound and solvent sureties in the sum of Rs. 10,000/- each to the satisfaction of the learned Trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
18. A copy of this order be circulated to all the Special Judge, NDPS Cases Court. A copy of this order be also sent to the Director General of Police, Rajasthan Jaipur as also to the Directors, State Forensic Science Laboratory, Jaipur and Jodhpur.