Rajasthan High Court - Jodhpur
Ashok Siyol vs State on 15 October, 2020
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S. B. Criminal Misc. 2nd Bail Application No. 4063/2020
1. Ashok Siyol S/o Dharmam Siyol, aged about 20 years, By
caste Jat,
2. Rajaram S/o Fusa Ram, aged about 20 years, By caste
Jat, R/o Siyol Nagar, Laxman Nagar, Tehsil Phalodi, P.S.
Bhojasar and District Jodhpur.
(At present lodged at Sub Jail Bali, District Pali).
----Petitioners
Versus
State of Rajasthan
----Respondent
For Petitioner(s) : Mr. K.P. Raj Singh through video
conferencing on 'Jitsi Meet' app
For Respondent(s) : Mr. Farzand Ali, AAG - cum - GA
assisted by Mr. S.K. Bhati, P.P.
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Reportable Order 15/10/2020
Lawyers are not appearing in the Court in view of the unprecedented situation being faced by the country due to pandemic of novel corona virus (COVID-19).
The present second bail application under Section 439 read with Section 167(2) of Cr.P.C. has been filed by the petitioners who are in custody in connection with F.I.R. No. 227/2019, Police Station Rani, District Pali for the offence under Section 8/15 of the N.D.P.S. Act.
The first bail application of the petitioners was rejected by this Court on 20.01.2020 and thereafter, the charge-sheet has been filed on 23.03.2020. Hence, this second bail application. (Downloaded on 15/10/2020 at 08:37:50 PM)
(2 of 16) [CRLMB-4063/2020] Heard learned counsel for the petitioners through video conferencing and the learned Additional Advocate General - cum - Government Advocate assisted by learned Public Prosecutor. Perused the material available on record.
The facts of the case in short are that on 24.09.2019, Shri Hukum Giri, A.S.I., S.H.O. Police Station Rani, District Pali received an information through wireless that one Honda Car had broken the Nakabandi at Desuri Hariom Ashram and Toll Naka. On receiving the said information, when the S.H.O. along with team was going towards Nadol at 10.08 A.M., one Kamal Singh, Nadol Chowki Incharge informed that during the course of Nakabandi at Nadol, one Honda City car bearing Registration No. RJ-27-CA-7345 was indicated to stop but on seeing the police party, the driver of the car had broken the Nakabandi and ran away towards Kharda, upon which, the police chased the said car and got it stopped. Two persons came down from the car and started to run away. Both of them were apprehended. On being asked, one told his name as Ashok Siyol and another Rajaram. There were 05 bags containing illegal Poppy Husk lying on the back seat of the car, which were taken into police custody in the presence of witnesses and on being weighed, its total weight comes to 78.600 kgs. On asking about the valid license and permit to carry and transport the subject contraband, the accused persons were not possessing the same, therefore, they were arrested on the spot on 24.09.2019 and the subject contraband along with vehicle was seized by the police. After conclusion of investigation, the police submitted the charge-sheet before the court of competent criminal jurisdiction on 23.03.2020, on which date, the accused-petitioners (Downloaded on 15/10/2020 at 08:37:50 PM) (3 of 16) [CRLMB-4063/2020] preferred an application under Section 439 read with Section 167(2) of Cr.P.C. seeking to release them on 'default bail' on the ground that no charge-sheet was available against them in the Court and the mandatory custodial period suffered by them had crossed 180 days, therefore, they became entitled to be released on bail. The said application came to be rejected by the trial court vide its Order dated 24.03.2020.
Learned counsel for the petitioners while praying for grant of bail to the petitioners submits that after rejection of the first bail application of the petitioners by this Court on 20.01.2020, the charge-sheet in the present case was filed on 23.03.2020. He further submits that as per provisions of Section 36-A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the charge-sheet has to be filed within a period of 180 days. But in the present case, the provisions of Section 36-A(4) ibid have not been complied with as the petitioners were arrested on 24.09.2019 and the period of 180 days expired on 21.03.2020 (working day) but neither any charge-sheet against the petitioners was available in the Court on 21.03.2020 (Saturday) nor any application seeking extension of period for filing the charge-sheet under Section 36-A(4) of the N.D.P.S. Act was filed by the prosecution and therefore, the petitioners were entitled for bail as of right. Learned counsel further submits that the petitioners preferred the bail application before the trial court on 23.03.2020 at 10.15 A.M. and till the filing of the bail application, the charge- sheet in the case was not filed, which was, in fact, filed on 23.03.2020 at 4.30 P.M. Learned counsel further submits that although, the period of 180 days expired on Saturday i.e. (Downloaded on 15/10/2020 at 08:37:50 PM) (4 of 16) [CRLMB-4063/2020] 21.03.2020 and no application for extension of time for filing the charge-sheet having been filed by the prosecution, the petitioners are entitled for default bail in view of provisions of Section 36-A(4) of the N.D.P.S. Act as well as Section 167(2) of Cr.P.C. Learned counsel further submits that even if, by the calculation of the prosecution, the period of 180 days completed on 22.03.2020, which being Sunday was government holiday, the petitioners are yet entitled to be released on bail and the benefit of 180 th day being Sunday cannot be given to the prosecution. He further submits that the detention of the petitioners in the present case after 180th day is in violation of the settled provisions of law. He, therefore, prays that the petitioners may be enlarged on bail.
Learned counsel for the petitioners has relied upon the judgment of the Hon'ble Apex Court in the case of Achpal and ors. Vs. State of Rajasthan reported in AIR 2018 SC 4647 as well as judgments of the Bombay High Court in the case of State of Maharashtra Vs. Sharad B. Sarda reported in 1983(1) BomCR 578 and Delhi High Court in the case of Powell Nwawa Ogechi Vs. State (Delhi Administration) reported in 1986 CriLJ 2081.
Per contra, learned Additional Advocate General - cum - Government Advocate has replied the averments made in the bail application preferred by the petitioners by filing the counter submissions. Learned Additional Advocate General opposing the bail to the petitioners submits that the stipulated period of 180 days in the present case expired on 22.03.2020 and since the 180th day i.e. 22.03.2020 being Sunday was a government holiday, therefore, the charge-sheet was filed on the next working (Downloaded on 15/10/2020 at 08:37:50 PM) (5 of 16) [CRLMB-4063/2020] day (Monday) i.e. 23.03.2020. Hence, the period of 180 days in the present case will be calculated and completed on 23.03.2020 being the next available working day. According to the learned Additional Advocate General, since the 180 th day was expiring on 22.03.2020 which was the Sunday and the charge-sheet was filed on the next working day i.e. Monday (23.03.2020), therefore, no application for extension of time was filed by the prosecution. He has relied upon Section 10 of the General Clauses Act, 1897, which reads as under :-
"10. Computation of time.- (1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day on the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court of office is open;
Provided that nothing in this section shall apply to any act or proceedings to which the Indian Limitation Act, 1877 (15 of 1877) applies.
(2) This section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887."
Relying upon Section 10 of the General Clauses Act, learned Additional Advocate General submits that even as per Section 10 of the General Clauses Act, 1897, if the period of limitation is expiring on Sunday, the same will be extended to the next working day of the Court i.e. Monday. He further submits that because of pandemic of the novel corona virus (COVID-19), the (Downloaded on 15/10/2020 at 08:37:50 PM) (6 of 16) [CRLMB-4063/2020] charge-sheet in the present case could not be filed before completion of period of 180 days i.e. 22.03.2020. Learned Additional Advocate General has relied upon the judgment of Orissa High Court in the case of N. Sureya Reddy and ors. Vs. State of Orissa reported in 1985 (I) OLR 105 and contends that the period of limitation would be automatically extended to the next working day if, the day on which the period is expiring, is a holiday. He, therefore, prays that the petitioners are not entitled for the default bail in the facts and circumstances of the present case.
I have considered the rival submissions made at the Bar and carefully gone through the material available on record.
Before proceeding further, this Court may notice Sub-section (2) of Section 167 of Cr.P.C., which deals with the liberty of a citizen, which reads as under :-
"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize 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 that :
(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate (Downloaded on 15/10/2020 at 08:37:50 PM) (7 of 16) [CRLMB-4063/2020] shall authorize 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 than ten years:
(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 XXXIII for the purpose of that Chapter."
Section 36-A of the N.D.P.S. Act, 1985 deals with 'Offences triable by Special Courts" and its sub-section (4) reads as under :-
"(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days";
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
The admitted facts in the instant case are that the petitioners were arrested in the present case on 24.09.2019 and (Downloaded on 15/10/2020 at 08:37:50 PM) (8 of 16) [CRLMB-4063/2020] 78.600 kgs. of contraband Poppy Husk was recovered from the subject car, in which they were travelling and therefore, as per calculation of period for filing charge-sheet from the date of arrest, the 180th day was completed on 21.03.2020. Admittedly, neither the charge-sheet nor any application for extension of time for filing the charge-sheet as per mandate of Section 36-A(4) of N.D.P.S. Act was filed by the prosecution till 21.03.2020. Therefore, in these circumstances, the petitioners were justified in filing the bail application before the trial court on the next working day i.e. Monday (23.03.2020). It is also an admitted fact that on 23.03.2020 itself at around 4.30 P.M., the charge-sheet in the present case was filed. On a specific query being raised, learned Additional Advocate General on instructions submitted that the charge-sheet in the present case was preferred before the trial court on 23.03.2020 at around 4.30 P.M. which is also reflected from the endorsement made on the challan papers.
The learned Division Bench of the Delhi High Court in the case of Powell Nwawa Ogechi (supra) has held in Para 15 of the judgment as under :-
"15. Having given our careful consideration to the facts of the present case, the arguments of the learned Counsel for the parties, the relevant statutes and case law on the subject, we are of the view that under the provision of Section 167(2) of the Code an accused person against whom charge-sheet is not presented before the Court within the period of 90 or 60 days, as the case may be, is entitled to be offered bail as a matter of right. For this there is no requirement of law for him to apply. The bail has to be offered to him and he can only be detained in further custody if he fails to furnish bail. The only provision under which an accused person can be detained (Downloaded on 15/10/2020 at 08:37:50 PM) (9 of 16) [CRLMB-4063/2020] thereafter is Section 309 of the Code but for the exercise of that power the pre-requisite is that there must be a charge- sheet pending before the Court. This right of the accused person, therefore, under Section 167(2) of the Code is absolute and indefeasible unless he fails to furnish the bail. We are also in full agreement with the observations made in Noor Mohammad's case (supra) that Section 167(2) of the Code does not cease to apply even if the charge-sheet is submitted after 90 or 60 days and the accused is entitled to ask for the right which had already accrued to him. We are also of the view that Section 10 of the General Clauses Act is not applicable in such a situation and it cannot be invoked to defeat the accrued right of an accused person to be freed. We are further of the view that the Magistrates should monitor the remand proceedings during investigation in such a manner so that a full account of the remand. is handy and bail is offered to such accused person at the end of 90 or 60 days, as the case may be. We are giving these reasons in support of our order dt. 30th July, 1986."
However, a contrary view has been expressed by the learned Division Bench of the Orissa High Court in the case of N. Sureya Reddy and ors. (supra).
In these circumstances, it will be gainful to reproduce the observations made by the Hon'ble Supreme Court in the case of Achpal and ors. (supra). The relevant Para 16 to Para 20 of the judgment are reproduced as under :-
"16. The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of Sub-section (1) of Section 167, if "it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57" the concerned officer ought to transmit the entries in the diary relating to the case (Downloaded on 15/10/2020 at 08:37:50 PM) (10 of 16) [CRLMB-4063/2020] and at the same time forward the Accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the Accused be remanded to custody or not. Sub-section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the Accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the Accused person shall be released on bail, if he is prepared to and does furnish bail.
17. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the Accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person Accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation.
18. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the Accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of (Downloaded on 15/10/2020 at 08:37:50 PM) (11 of 16) [CRLMB-4063/2020] Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period Under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The Accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. In our considered view the Accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour.(Downloaded on 15/10/2020 at 08:37:50 PM)
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19. We must at this stage note an important feature. In Rakesh Kumar Paul (supra), in his conclusions, Madan B. Lokur, J. observed in para 49 as under :
49. The Petitioner is held entitled to the grant of "default bail" on the facts and in the circumstances of this case. The trial Judge should release the Petitioner on "default bail" on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the Petitioner on cogent grounds in respect of the subject charge and upon arrest or re-
arrest, the Petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the Petitioner in any other case.
In his concurring judgment, Deepak Gupta, J. agreed1 with conclusions drawn and directions given by Madan B. Lokur, J. in paragraphs 49 to 51 of his judgment. According to the aforesaid conclusions, it would not prohibit or otherwise prevent the arrest or re-arrest of the Accused on cogent grounds in respect of charge in question and upon arrest or re-arrest the Accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit.
20. We, therefore, allow this appeal and direct that the Appellants are entitled to be admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate. The matter shall be immediately placed before the trial court upon receipt of copy of this Judgment. We also add that in terms of conclusions arrived at in the majority judgment of this Court in Rakesh Kumar Paul (supra), there would be no prohibition for arrest or re-arrest of the Appellants on cogent grounds and in such eventuality, the Appellants would be entitled to petition for grant of regular bail."
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(13 of 16) [CRLMB-4063/2020] In view of the ratio of judgment of the Hon'ble Supreme Court in the case of Achpal and ors. (supra), the personal liberty of a person is sine qua non and therefore, if the period of 180 days even if being completed on a holiday, it will not give a leverage to the prosecution to file the charge-sheet on the next working day and take into account that the charge-sheet has been filed within the prescribed period. If the charge-sheet is not filed within the stipulated period then, an accused will get the indefeasible right to be released on bail and if the accused is not released on bail then, the accrued right of an accused person is defeated. Thus, Section 10 of the General Clauses Act, 1897 will not be having any application in the facts and circumstances of the present case and the period of 180 days will be deemed to have expired on the day, on which it actually expired even if it was a holiday. Thus, in the present case, when the application for bail was filed, the outer limit of 180 days for filing charge-sheet had lapsed and the report under Section 173 of Cr.P.C. was not available with the Court and therefore, the accused gained the indefeasible right to be released on bail.
On the same lines, the Coordinate Bench of this Court in the case of Mangal Singh & anr. Vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 438/2020) decided on 07.02.2020 has observed that it is the mandate of law that the charge-sheet in such cases is required to be filed within a period of 180 days and if not, then appropriate application for extension of time for filing charge-sheet has to be filed, failing which the accused will be entitled for bail.
(Downloaded on 15/10/2020 at 08:37:50 PM)
(14 of 16) [CRLMB-4063/2020] Looked at from another angle, the law provides upper limit of 180 days for completing the investigation in N.D.P.S. cases and filing the charge-sheet (if no application for extension of time is filed), thus, there cannot be any excuse for the prosecuting agency not to complete the investigation before the time mandated by the provisions of law. Therefore, the investigation has to be completed within the prescribed period. As per Section 36-A(4) of the N.D.P.S. Act, if the investigation is not completed within the stipulated period then, an appropriate application giving reasons for not completing the investigation is required to be filed before the court of competent jurisdiction. Therefore, it is not the sweet will of the prosecuting agency to file the charge-sheet casually even after the stipulated period and thereafter, claim for excuse for not filing the same on time. Moreover, this Court is constrained to observe that from 24.09.2019 to 21.03.2020, the pandemic was not there and therefore, the ground that due to pandemic of COVID-19, the charge-sheet could not be filed within time is on the face of it baseless.
Needless to say at this stage that the investigation should have been completed and the charge-sheet should have been filed well before the time prescribed and not filing the same is casual and callous behaviour of the prosecuting agency specially in the N.D.P.S. cases, therefore, the same is required to be viewed seriously.
Having regard to the peculiar facts and circumstances of the case and without commenting upon merit of the case, this Courts finds that the petitioners are entitled to be released on bail. (Downloaded on 15/10/2020 at 08:37:50 PM)
(15 of 16) [CRLMB-4063/2020] Consequently, the present second bail application filed under Section 439 of Cr.P.C. is allowed. It is ordered that the accused- petitioners (1) Ashok Siyol S/o Dharmam Siyol and (2) Rajaram S/o Fusa Ram arrested in connection with F.I.R. No. 227/2019, Police Station Rani, District Pali shall be released on bail provided each of them furnishes a personal bond of Rs.1,00,000/- (Rupees: One Lac Only) with two sureties of Rs.50,000/- (Rupees : Fifty Thousand Only) 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.
At this stage, it is important to notice that the recovery of contraband in commercial quantity is involved in the present case and a case under the N.D.S.P. Act has been registered, in such circumstances, the laxity on the part of the prosecution in not taking appropriate measures for completing the investigation and filing the charge-sheet within the stipulated period is viewed seriously by this Court. The callous behavior of the concerned investigation officer reflected in not filing the application for extension of time for filing the charge-sheet as mandated in Section 36-A(4) of the N.D.P.S. Act, is highly deprecated.
The number of N.D.P.S. cases are on the rise nowadays and are becoming a menace to the society, therefore, the Director General of Police, Rajasthan, Jaipur is directed to get the matter enquired and take appropriate action by instituting the departmental enquiry against the defaulting official and complete the same within a period of one year from the date of receipt of (Downloaded on 15/10/2020 at 08:37:50 PM) (16 of 16) [CRLMB-4063/2020] the copy of this order. The outcome of the enquiry be submitted before this Court.
(VINIT KUMAR MATHUR),J 1-Inder/-
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