Rajasthan High Court - Jodhpur
Kana Ram vs State on 4 May, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. IInd Bail No. 3665 / 2017
Kana Ram son of Lada Ram, adopted son of Mana Ram, aged 53
years, by caste Sirvi, resident of Bera Kagowala Khemel, Falna
Police Station, District Pali.
(Lodged in Sub Jail, Bali)
----Petitioner
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. V.R. Choudhary
For Respondent(s) : Mr. A.S. Rathore, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment 04/05/2017 Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
The instant second bail application under Section 439 Cr.P.C. has been preferred on behalf of the petitioner who is in custody since 21.1.2017 in connection with F.I.R. No.14/2017, registered at Police Station Falna, District Pali for the offence under Section 8/15 NDPS Act.
The first application for bail filed on behalf of the petitioner Kana Ram was rejected by this Court on 28.03.2017.
Learned counsel Shri V.R. Choudhary urges that the petitioner was arrested in this case on 21.01.2017 with the allegation of being found in possession of 14.700 Kgs. contraband poppy straw. The FIR came to be registered against the petitioner for the offence under Section 8/15 of NDPS Act with the allegation of being found in possession of the above quantity of poppy straw which as per the schedule is below commercial quantity and punishable with imprisonment upto ten years and fine as per (2 of 4) [CRLMB-3665/2017] Section 15(b) of the NDPS Act. Since, the petitioner is being prosecuted for the offence of being in possession of contraband poppy straw weighing below commercial quantity, the restrictions contained in Section 37 of the NDPS Act would not operate against him.
Shri V.R. Choudhary further urges that in the case at hand, the limitation available to the prosecution for filing the charge- sheet during subsisting custody period of the accused would be at best of 60 days and no sooner the said period expired without charge-sheet being submitted, the accused would acquire an indefeasible right of bail under Section 167 (2) Cr.P.C. He urges that in the present case charge-sheet was submitted by the prosecution on 05.04.2017. Before that and soon upon expiry of outer limit of 60 days, the petitioner submitted an application dated 28.03.2017 before the Trial Court under Section 167(2) Cr.P.C. claiming compulsive bail. However, such application was illegally rejected by the learned trial Court by order dated 17.04.2017 observing that Section 37 of the NDPS Act overrides the scope and ambit of 167(2) Cr.P.C. He contends that learned trial Court erred on both counts while rejecting the bail application of the accused inasmuch as, the quantity of contraband poppy straw recovered from the petitioner's possession being less than commercial quantity, rider of Section 37 of the NDPS Act would not have any application and further the observation that Section 37 of the NDPS Act overrides the mandate of Section 167(2) Cr.P.C. is totally illegal. He thus urges that the petitioner deserves to be enlarged on bail.
(3 of 4) [CRLMB-3665/2017] Per contra, learned Public Prosecutor vehemently opposes the submission advanced by the petitioner's counsel and contends that instant one is the second case of Narcotics registered against the petitioner and therefore he should not be enlarged on bail. However, he does not dispute that in the case at hand, charge- sheet was filed against the petitioner well after expiry of more than 60 days from his arrest.
I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. Apparently the learned trial Court committed gross illegality on both the counts while rejecting the petitioner's bail application by order dated 17.4.2017. Since weight of the contraband recovered from the possession of the petitioner was less than the prescribed commercial quantity, apparently the rider contained in Section 37 of the NDPS Act would not operate against the petitioner's endeavor to claim bail. Further, the observation made by the learned trial Court in the order dated 17.4.2017 while relying upon a Punjab High Court Judgment that the restriction contained in Section 37 of the NDPS Act has overriding effect on the mandate of Section 167(2) Cr.P.C. is totally unfounded and baseless. This controversy is no longer res-integra in view of ratio of the judgment rendered by the Hon'ble Supreme Court in the case of Union of India Vs. Thamisharasi and Ors. reported in 1995 volume 4 SCC 190. In the said judgment the Hon'ble Supreme Court clearly ruled that the right of compulsive bail available to the accused under Section 167(2) Cr.P.C. cannot be curtailed by Section 37 of the NDPS Act. Furthermore, the trial (4 of 4) [CRLMB-3665/2017] Court overlooked the amendment made in Section 36 of the NDPS Act whereby, the duration of 90 days as mentioned in Section 167(2) Cr.P.C. has been extended to 180 days in cases where the recovered contraband is more than commercial quantity. Thus, the intention of the legislature is clear to the effect that Section 167(2) Cr.P.C. does apply even to cases under the NDPS Act. As the recovered contraband in the present case is less comercial quantity, the maximum punishment for such offence is upto 10 years and thus, the period of limitation for submission of charge- sheet available to the prosecution while the accused is in custody would only be 60 days.
Admittedly, the investigating agency failed to file a charge- sheet against the petitioner within the statutory period of 60 days from the date of his arrest and thus he acquired an indefeasible right to be released on bail by virtue of Section 167(2) Cr.P.C.
Consequently, the second application for bail deserves to be and is hereby allowed. It is ordered that the petitioner Kana Ram arrested in connection with the F.I.R. No.14/2017, registered at Police Station Falna, District Pali shall be released on bail provided he furnishes a personal bond of Rs.80,000/- and two surety bonds of Rs.40,000/- 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.
(SANDEEP MEHTA)J. Anurag/-