Punjab-Haryana High Court
Rakesh Kumar And Another vs State Of Punjab on 21 April, 2011
Author: S.S.Saron
Bench: S.S.Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No.M-14429 of 2010
Date of decision: 21.4.2011.
Rakesh Kumar and another
..... Petitioners
Versus
State of Punjab
... Respondent
Present: Mr. G.S.Kaura, Advocate for the petitioners.
Mr. VPS Sidhu, AAG, Punjab.
S.S.SARON, J.
Heard learned counsel for the parties.
The petitioners seek regular bail in a case registered against them for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act').
The primary ground that has been urged for the grant of bail is that the petitioners were arrested on 12.10.2009 and the prosecution filed its challan on 13.4.2010 i.e. one day after the period of 180 days had elapsed. Therefore, in view of the provisions of Section 167(2) of the Code of Criminal Procedure ("CrPC" - for shortg) as modified by Section 36-A (4) of the Act after expiry of 180 days, the petitioners are liable to be released from custody.
Learned trial Court vide its order dated 13.4.2010 (Annexure A.1) has observed that there was a delay of one day in filing the challan. It was stated by the Investigating Officer that he was busy in connection with the investigation in some other case. Accordingly, the learned trial Court deemed it appropriate to extend the period for Crl. Misc. No.M-14429 of 2010 [2] completing the investigation by one day in terms of its aforesaid order dated 13.4.2010 (Annexure A.1). The application for bail filed by the petitioners was declined on the same day vide order dated 13.4.2010 (Annexure P.4).
According to the learned counsel for the petitioners, the application seeking extension of time for presenting the challan was liable to be filed before the expiry of period of 180 days. In any case, it is submitted that extension of time could be given in terms of Section 36-A (4) of the Act provided the Public Prosecutor indicates the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. It is submitted that no specific reasons have been mentioned by the Public Prosecutor, besides, there is no application of mind on his part.
In response, learned counsel appearing for the State has submitted that the investigation in the case was completed on 6.1.2011. However, the challan could not be filed as the Investigating Officer, ASI Avtar Singh, Police Station Mukandpur had during investigation gone to Rajiv Gandhi University of Law, Patiala for doing a course. Thereafter, he went to Jhajjar and Sonepat districts, besides, he went for investigation regarding two other cases and he also remained busy in VIP and other duties. Therefore, the challan could not be presented in time and the time had elapsed. It is submitted that the learned trial Court having extended the time for filing the challan, has committed no error and the petitioners are not entitled for the grant of bail on that account.
I have given my thoughtful consideration to the matter. The petitioners were apprehended on the basis of secret information with 3 kgs of smack. According to the learned State counsel, there is no other case against them. The petitioners were arrested on 12.10.2009 and the challan in the case was filed on 13.4.2010 i.e. one day after the period of 180 days had elapsed. ASI Avtar Singh, the Crl. Misc. No.M-14429 of 2010 [3] investigating officer filed an application for extension of time. A copy of the application that was filed has been submitted during the course of hearing. It is merely mentioned by the investigating officer that he had gone to Rajiv Gandhi University of Law, Patiala for doing a course. Then he was deputed for duty at Jhajjar and Sonepat districts, besides, he was busy in investigation of two other cases. During investigation, he was also busy in VIP and other duties, therefore, the challan could not be presented in time and the time had lapsed. The said application was merely forwarded by the Additional Public Prosecutor.
In order to appreciate the contention of the learned counsel for the parties, the provisions of Section 36-A (4) of the Act may be noticed, which 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 1972 (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."
A perusal of the said section shows that in respect of offences involving commercial quantity, the references in section 167 Crl. Misc. No.M-14429 of 2010 [4] (2) CrPC, thereof to '90 days', where they occur, are to be construed as reference to '180 days'. In terms of the proviso, it has been envisaged that if it is not possible to complete the investigation within the period of 180 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 specific reasons for the detention of the accused beyond the said period of 180 days. Section 167 CrPC provides the procedure when investigation cannot be completed within 24 hours. In terms of the proviso to sub-Section (2), the Magistrate may authorize the detention of the accused person, otherwise than in custody of the police, beyond the period of 15 days, if he is satisfied that adequate grounds exists for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a period of not less than 10 years and 60 days, where the investigation relates to any other offence. On the expiry of said period of 90 days or 60 days, as the case may be, the accused person is to be released on bail if he is prepared and does furnish bail. The said period of 90 days is to be construed as 180 days in terms of Section 36-A (4) of the Act. Therefore, in a case under the Act when the charge-report (Challan) is not filed within the period stipulated, the accused person gets an indefeasible right to the grant of bail and the Court is to grant bail.
In the present case, the Public Prosecutor has merely forwarded the application of the investigating officer seeking extension of time for filing challan and has not given any report indicating the progress of the investigation, nor any specific reason for detention of the accused beyond the period of 180 days. The Supreme Court in Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and Anr., 2010(1) RCR (Criminal) 942 considered a Crl. Misc. No.M-14429 of 2010 [5] case under the Act where the challan against the accused had not been filed within the period of 180 days and the prosecution had sought further extension under Section 36-A(4) of the Act. It was held that the Court is empowered to authorise the detention which in total may go upto one year provided following conditions are satisfied: (1) a report of the public prosecutor, which indicated the progress of the investigation; (2) specific and compelling reasons for seeking the detention of the accused beyond the period of 180 days; and (3) after notice to the accused. It was held that a bare perusal of the application that was filed in the said case showed that it had been filed by the Narcotic Control Bureau without indicating remotely any application of mind by the Public Prosecutor. It was also observed by the Supreme Court that the application further did not indicate the progress of the investigation, nor any reasons requiring for extension of detention of accused beyond 180 days. The application for extension of time was allowed in the said case by the Special Judge on 2.8.2007 i.e. on the same day when it was filed which also indicated that no notice was issued to the accused and he was not even present in the Court. Accordingly, the bail of the accused in the said case was allowed and the order granting extension was set aside.
In the present case, the application seeking extension of time does not contain any of the ingredients as are envisaged by Section 36-A(4) of the Act. It does not even remotely indicate any application of mind by the Public Prosecutor nor discloses the progress of the investigation or the specific and compelling reasons seeking detention of accused beyond a period of 180 days. The reasons recorded by the trial Court in its order dated 13.4.2010 (Annexure A1) have also not adverted to the said conditions as provided for by the provisions of Section 36-A (4) of the Act and considered by the Supreme Court in Sanjay Kumar Kedia's case (Supra). Crl. Misc. No.M-14429 of 2010 [6]
Accordingly, the present petition is allowed and the petitioner on his furnishing personal bond and surety to the satisfaction of the learned trial Court shall be admitted to bail.
(S.S. SARON)
April 21, 2011 JUDGE
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