Punjab-Haryana High Court
Sukha @ Sukhdev Singh vs State Of Punjab on 18 December, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Revision No. 3837 of 2014 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Crl. Revision No. 3837 of 2014 Date of decision : December 18, 2014 ***** Sukha @ Sukhdev Singh ............Petitioner Versus State of Punjab ...........Respondent ***** CORAM: HON'BLE MS. JUSTICE RITU BAHRI ***** Present: Mr. Sukhjit Singh, Advocate for the petitioner.
Mr. Gurvir Sidhu, AAG, Punjab.
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1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest? RITU BAHRI, J Present revision petition has been filed against the order dated 10.11.2014 passed by Judge, Special Court, Jallandhar, whereby the bail application of the petitioner filed under Section 167 (2) of Code of Criminal Procedure was dismissed.
FIR No. 51 dated 13.5.2014 was registered under Sections 15/61/85 of NDPS Act at Police Station Division 7, Jallandhar, Distt. Jallandhar. Petitioner Sukha alias Sukhdev Singh along with one Sona Singh alias Sonu was found in possession of 60 jute bags containing poppy husk while carrying the same in canter having registration No. HR 037R-5482. Possession of such huge RITU 2014.12.19 15:33 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 3837 of 2014 2 quantity of poppy husk falls within the category of commercial quantity. The application was made by the prosecution on 4.11.2014 seeking extension of time to present the challan as per the provisions of Section 36-A (4) of NDPS Act. The other application was made by the petitioner Sukha @ Sukhdev Singh under Section 167 (2) of Cr.P.C for grant of bail. Present application for extension of time was made on 4.11.2014 before the expiry of 180 days. The trial Court referred to a judgment passed by this Court in the case of Shri Kant @ Rinku vs. State of Punjab in CRM-M No. 38619 of 2013, decided on 14.3.2014, wherein it was observed that extension can be given by the Court on the report of Public Prosecutor indicating the progress of investigation and specific reasons for seeking the detention of accused beyond the period of 180 days. Trial Court allowed the application made by the Addl. Public Prosecutor under Section 36-A (4) of the NDPS Act for extension of time and granted extension of 32 days from the date of expiry of 180 days to procure the report and to file the challan. Section 36-A (4) of the NDPS Act is reproduced as under:
"36A. Offences triable by Special Courts.
(1) x x x (2) x x x (3) x x x (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27 A or for offences RITU 2014.12.19 15:33 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 3837 of 2014 3 involving commercial quantity the references in sub-section (2)of Section 167 of the Code of Criminal Procedure, 1973 (2 of1974), 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."
A perusal of the above said Section makes it clear that if the investigation is not completed within a period of 180 days, extension of time up to one year can be granted on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused. In the present case the application for extension of time was filed by the Additional Public Prosecutor without the report of the Public Prosecutor. The RITU 2014.12.19 15:33 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 3837 of 2014 4 report of the Public Prosecutor as per Section 36-A(4) is the essential requirement for granting extension of time. In the present case this report is not a part of the application and the reason given for extension of time is that the report of the Chemical Examiner has not been received and, therefore, the challan could not be presented.
This Court in a number of judgments in the cases of Nardev Inder Singh vs. State of Punjab (Criminal Misc. No. M- 3339 of 2014) decided on 4.2.2014, Ashwani Kumar @ Ashu vs State of Punjab (Crl. Revision No. 2365 of 2013) decided on 26.8.2013, Raj Singh @ Babbu vs. State of Punjab, 2013 (3) RCR (Criminal) 1054, Rakesh Kumar and another vs. State of Punjab 2011 (3) RCR (Criminal) 297, Jaswinder Singh and another vs State of Punjab 2005 (2) RCR (Criminal) 663 has taken a view that if a proper application for extension of time along with the report of Public Prosecutor indicating the progress of investigation or any specific and compelling reasons for detention of accused beyond the period of 180 days, has not been made and a period of 180 days elapses, the accused gets an indefeasible right to be released on bail.
In the case of Shri Kant @ Rinku vs State of Punjab decided by this Court on 14.3.2014 the issue of filing the application for extension of time before the expiry of 180 days was examined. In paragraph 16, it has been observed as under:
16. In similar circumstances, a co-
ordinate Bench of this Court has considered exactly RITU 2014.12.19 15:33 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 3837 of 2014 5 the same satisfaction recorded by the Public Prosecutor recorded in an application which was made for extension of time beyond 180 days of custody of the accused. While dealing with the same matter, the said co-ordinate Bench in CRM-M No. 41673 of 2013 decided on 15.1.2014 tilted Jeevan Sharma @ Vicky vs. State of Punjab had observed as under:
10. In the present case also, the sole reason given in the application of the public prosecutor (Annexure P-3 with the petition), is that:"That I am satisfied that the investigating officer of this case made every effort to receive the report of the Director, Forensic Science Laboratory, Mohali. But the same was beyond his control, so the extension of above noted period for presenting the challan is very much necessary and the same may be extended in the interest of justice. Otherwise prosecution will suffer irreparable loss. It is therefore requested that the application may kindly be allowed in the interest of justice."
11. Keeping in view the contents of the application moved by the public prosecutor for extension of time, I find that the matter would be squarely covered by the ratio of the law laid down in Sanjay RITU Kumar Kedias' case, as extension of time for 2014.12.19 15:33 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 3837 of 2014 6 presentation of "challan" was obviously sought on similar grounds as given in the case before the Apex Court, wherein such reason has been held to be not good for grant of extension of time."
In the abovesaid case, the reason for extension of time was being sought on the ground that the report of FSL, Mohali had not been received. Hon'ble the Supreme Court in the case of Sanjay Kumar Kedia @ Sanjay Kedi vs. Intelligence Officer, Narcotic Control Bureau and another 2010 (1) RCR (Criminal) 947 held that under Section 36-A (4) of the Act, extension could be given by the Court on the report of the Public Prosecutor indicating he progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days.
In the present case, no such report of the Public Prosecutor was attached with the application. Hence, the application for extension of time was wrongly allowed as the petitioner had a right to be released on bail as per Section 167(2) of the Criminal Procedure Code.
In view of all discussed above, present petition is allowed. Order dated 10.11.2014 passed by Judge, Special Court, Jallandhar is set aside. The petitioner is enlarged on bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Jallandhar.
December 18, 2014 ( RITU BAHRI )
ritu JUDGE
RITU
2014.12.19 15:33
I attest to the accuracy and
authenticity of this document
Chandigarh