Punjab-Haryana High Court
Navneet vs State Of Haryana on 17 September, 2024
Neutral Citation No:=2024:PHHC:126852
CRR No. 1759 of 2023 (O&M)
334
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No.1759 of 2023 (O&M)
Date of Decision
Decision: 17.09.2024
Navneet ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:- Mr. R.S. Mamli, Advocate
for the petitioner.
petitioner
Mr. Manish Dadwal, AAG,
AG, Haryana
****
HARKESH MANUJA, J.
CRM-32169-2024 2024 This is an application for preponing the date of hearing of the main petition which is pending for 06.11.2024.
Learned counsel for the respondent raises no objection to the prayer made in the application.
In view of the agreed stand taken by both sides, the application lication is allowed, the date of hearing is prepone preponed from 06.11.2024, and the main case is taken up on board today itself.
MAIN CASE The petitioner, by way of present revision petition, seeks set setting ting aside of the order dated 26.07.2023 26.07.2023 passed by the learned arned Additional District and Sessions Judge, Rohtak,, vide which an application filed by the petitioner under the provisions of Section 167(2) Cr.P.C. for grant of default bail stands declined.
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2. Brief facts of the case are that an FIR No. No.516 516 dated 25.12.2022, under Section 15(c)/61/85 15(c) of the NDPS Act, 1985 at Police Station Meham, District Rohtak, Rohtak, was lodged against the petitioner wherein the allegations broadly were to the effect that on 25.12 25.12.2022, he was found in conscious possession of 42 plastic plastic bags of Dodda Post (poppy poppy husk) husk with total weight of 884 kgs.; without any permit or license.
3. The petitioner was was arrested on 25.12 25.12.2022 and the statutory period of 180 days for filing of challan was to complete on 24.06 24.06.2023.
.2023.
However, the prosecution filed an application for extension of time for filing of challan alongwith the report of Forensic Science Laboratory on 15.06.2023, .2023, which was was allowed vide order dated 22.06.2023 (Annexure P2) P2 passed by the learned Additional Sessions Judge, Rohtak and the prosecution was granted extension for a period of 30 days i.e. till 14.07.2023 for the said purpose.
4. Thereafter, another application was filed by the prosecution on 12.07.2023, seeking further extension of time which wa was allowed vide order dated 14.07.2023 (Annexure P3) P3) passed by the learned Additional Sessions Judge, Rohtak and the prosecution was granted another period of 30 days till 14.08.2023 for filing of challan alongwith the FSL report.
5. In the meanwhile, the petitioner moved an application for grant of default bail before the Court below under the provisions of Section 167(2) Cr.P.C. on 12.07.2023, 12.07.2023, i.e. after the expiry of statutory period of 180 days in filing the challan, but the same was dismissed on 26.07.2023 2023 by the learned Additional District District and Sessions Judge, Rohtak Rohtak,, with the observations that since the application for extension of time moved by the prosecution stands allowed vide orders order dated 22.06.2023 and 14.07.2023 2 2 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) respectively, while granting 60 6 days time,, the application for grant of default bail was not maintainable, maintainable, hence the present revision petition petition.
6. Learned counsel for the petitioner, while referring to the judgments passed by the co-ordinate ordinate benches of this Court ourt rendered in Pritam versus rsus State of Haryana, Haryana, CRR No. 696 of 2021 2021, and Gurmej Singh versus State of Haryana, Haryana, CRR No. 1357 of 2022 submits that petitioner's right qua the statutory/default bail cannot be defeated by mechanical ical extension of time for the reason of non-receipt receipt of Chemical Chemica Examination Report/FSL report and, and thus, his prayer for grant of default bail needs to be accepted.
7. On the other hand, learned State Counsel vehemently opposes the prayer while submitting that the Court below having permitted the investigating agency to file the challan with in extended period and the same been submitted within the time extended by the Court Court,, no interference was called for in the impugned order.
8. I have heard learned counsel for the parties and gone through the paper-book.
book.
9. Before getting into the facts of the case, it is apt to read the relevant provisions provision i.e. Section 167(2) of the Cr.P.C. and Section 36-A(4) A(4) of the NDPS Act, which are extracted here under:
under:-
"167 (2) The Magistrate to whom an accused per person son is forwarded under this section may, 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, 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--
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(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 that adequate grounds exist for doing so, but no Magistrate shall authorise the detenti detention on of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an exceeding--
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 pe person rson released on bail under this sub-section sub section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is pr produced oduced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police."
"36A.
36A. Offences triable by Special Courts Courts.--
1. XXXXXX
2. XXXXXX
3. XXXXXX
4. In respect of persons sons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub sub-section 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 tto o 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.
5. XXXXX."
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10. The proviso to Section 36-A(4) A(4) itself conveys that the extension can only be granted, in case the following twin conditions are fulfilled ::- (a) the public prosecutor makes a report indicating the progress in the investigation; (b) the specific reason for retention of a accused ccused beyond the prescribed period of 180 days, is mentioned in the application application.
11. In view of the above, the the question before this C Court ourt for determination in the present criminal revision petition is as to whether the reasons given for allowing the application application under Section 36A(4) of the NDPS Act, to extend the time period for permitting the prosecution to complete the investigation and for presentation of the challan, twice thereby,, defeating defeating the right of the petitioner for grant of 'default bail', is valid alid and sufficient. For the said sa purpose, the orders allowing extension i.e. 22.06.2023 and 14.07.2023 respectively, are culled out here hereunder:-
"DATE OF ORDER: 22.06.2023 File is put up before me being Duty Judge as Shri Mahesh Kumar, learned Addl. Sessions Judge, Rohtak is summer vacations.
Arguments on the application for extending the time for filing FSL report filed by the prosecution on 15.06.2023 heard.
In the aforesaid application, it has been pleaded by the prosecution that as per report of RFSL, RFSL, the report would be submitted till 07.07.2023. Therefore, time may be extended, so that challan alongwith FSL report can be submitted before the Court.
In view of the aforesaid averments made in the application by the prosecution and in the interest of of justice, this Court is of the view that in view of provision contained in Section 36A (4) of the NDPS Act, some more time should be granted to the prosecution for filing challan alongwith FSL report. Therefore, the aforesaid application is allowed and the th police/prosecution is permitted to submit the challan alongwith FSL report till 14.07.2023. Papers be sent to the concerned Court."
DATE OF ORDER:14.07.2023 5 5 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) Arguments on the application for extending the time for filing FSL report filed by the prosecution prosecution on 12.07.2023 heard.
In the aforesaid application, it has been pleaded by the prosecution that as per report of RFSL, the report would be submitted till 28.07.2023. Therefore, two months time may be extended, so that challan alongwith FSL report can be submitted before the Court.
Learned counsel for the accused has opposed the aforesaid application and has submitted that time for submitting challan alongwith FSL report cannot be extended. Learned counsel for the accused has placed reliance on Hitendra Vishnu Vishnu Thakur Versus State of Maharashtra, Criminal Appeal Nos. 732-735 732 735 of 1993, decided on 12.07.1994, Sanjeev Kumar Versus State of Punjab, Crl. Misc. No.M No.M-39703 39703 of 2013, decided on 04.12.2013, Rajwinder Singh @ Baljinder Singh Versus State of Punjab, CRM No.M4543 of 2016, decided on 02.05.2016, Pritam Versus State of Haryana, CRR No.696 of 2021, decided on 27.08.2021 and Gurmej Singh and others Versus State of Haryana and others, CRR No.1357 of 2022 and CRR No.1356 of 2022, decided on 19.09.2022.
Learned Public Public Prosecutor has submitted his report under Section 36A (4) of NDPS, Act for extension exten ion of time beyond 180 days pleading therein that sincere efforts were made by the police to complete the charge-sheet, sheet, well within statutory period of 180 days as provi provided ded under Section 36A (4) of NDPS Act. Sincere efforts were also made by the investigating officer to collect the RFSL report well within time but despite efforts, report could not be made part of challan as it was not prepared by the RFSL. Besides this, the the present case pertains to commercial quantity i.e. 844 kg. of poppy husk/Dodda Posst and it is a henious offence punishable with not less than 10 years.
Since the prosecution has given valid reason for exten extension ion of time for submitting challan alongwith FSL FSL report, therefore, this Court is of the view that in the interest of justice and in view of the provision contained in Section 36A (4) of the NDPS Act, some more time should be granted to the prosecution for filing challan alongwith FSL report. Therefor Therefore, e, the aforesaid application is allowed and the police/prosecution is permitted to submit the challan alongwith FSL report till 14.08.2023. Papers be tagged with the main case file."
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12. This issue has been dealt with by the Hon'ble Apex Court, in Hitendra Vishnu Thakur and others vs. State of Maharashtra and others, reported as (1994) 4 SCC 602 602, wherein under similar circumstances, it was held that the Public Prosecutor is not merely a post office or a forwarding agency as he may attach the request of the investigating officer, alongwith, his request or application and report, which must disclose on the face of it that he has applied his mind, and is satisfied with the progress of investigation. Relevant para of the judgment is extracted hereunder:-
hereunder "23.
23. We may at this stage, also on a plain reading of clause ((bb)) of sub--section section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecuto prosecutorr is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post off office ice or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension 7 7 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) of time and may find that the investigation had not progressed in the proper manner or that there has been unnece unnecessary, ssary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause ((bb)) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after a ann independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report,, as envisaged under clause ((bb), must disclose on n the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "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" as occurring in clause ((bb)) in sub-
sub section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acce acceptance ptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb).
( ). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where Wher either no report as is envisaged by clause (bb)) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) ( ) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail corollary and the court 'shall' release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause ((bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are 8 8 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the 'default' of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub-section sub on (4) of Section 20 as discussed in the earlier part of this judgment. We are unable to agree with Mr Madhava Reddy or the Additional Solicitor General Mr Tulsi that even if the public prosecutor 'presents' the request of the investigating officer to the court or 'forwards' the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected expected to zealously safeguard his liberty. Clause ((bb bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had a applied pplied his mind to the twin conditions contained in clause ((bb) of sub-section section (4) of Section 20. Since the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and in no other manner. A De Designated signated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) ( ) vulnerable. Whether the public prosecutor labels his report as a report or as an application pplication for extension, would not be of much consequence so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an an accused in further custody as envisaged by clause (bb) ( (supra).
). Even the mere reproduction of the application or 9 9 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the recording one envisaged by clause (bb) ( ) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause ((bb), ), the accused must be put on notice and permitted to have his his say so as to be able to object to the grant of extension."
13. The ratio of law laid down in Hitendra Vishnu Thakur and others' case (supra) was further followed by the Hon'ble Supreme Court in "Sanjay Sanjay Kumar Kedia alias Sanjay Kedia vs. Investigating Officer, Narcotics Control Bureau and another reported (2009) 17 SCC 631, wherein, it was observed, as under:-
"13.
13. The question to be noticed at this stage is as to whether the two applications for extension that had been filed by the Public Prosecutor seeking an extension beyond 180 days met the necessary conditions. We find that the matter need not detain us as it is no longer res integra and is completely covered by the judgment of this Court in Hitendra Vishnu case [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] . In this case, the Bench was dealing with the proviso inserted as clause (bb) ( in sub-section section (4) of Section 20 of TADA, which is in pari materia with the proviso to sub sub-section section (4) of Section 36-A A of the Act. This Court accepted the argument of the accused that an extension beyond 180 days could be granted but laid a rider that it could be so after certain conditions were satisfied satisfied....
16. The Court further went on to say that even if the application tor extension of time was either routed through the Public Prosecutor or supported by him would not make the said application a report of the 10 10 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) Public Prosecutor. Mr Bhattacharjee has, however, pointed out that the applications for extension filed by the Public Prosecutor under Section 36-A(4) 36 of the Act did satisfy the aforesaid conditions and merely because an independent report had not been tendered would not change the nature of the application."
14. In somewhat similar circumstances, co-ordinate ordinate Bench of this Court, has also in the case of "Ravinder "Ravinder ali alias as Bhola vs. State of Haryana", CRR CRR-2100-2023 2023 and connected petition, decided on 03.11.2023, while relying upon the judgments passed in Hitendra Vishnu Thakur and others and Sanjay Kumar Kedia alias Sanjay Kedia Kedia's s cases (supra) passed by the Hon'ble Apex Court, has held that the twin condition as prescribed under proviso attached to sub sub-clause (4) of Section 36-A A of the NDPS Act, is essential and coexistence, and non non-satisfaction satisfaction of even one condition on will not give any right right to prosecution about seeking an extension beyond the period of 180 days. The rel relevant evant extract of the judgment is extracted hereunder:-
"10.......
10.......AA perusal of the aforesaid proviso would show that in exceptional circumstances where it is not possible to complete the investigation within the said period of 180 days, the Special Court may extend the said period up to one year on the report of the Public Publ Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of 180 days. There are two essential ingredients for the purpose of extension of period of 180 days. These ingredients e envisaged nvisaged in the proviso are rather conditions precedent and conditions sine qua non for invoking the provision of the aforesaid proviso in extreme circumstances where the investigation is not complete. First condition is that the report of the Public Prose Prosecutor cutor suggests or indicates regarding the progress of the investigation and the second condition sine qua non is that specific reasons for the dentention of the accused beyond the period of 180 days. These two conditions are coexistant and non-satisfaction non satisfaction of even one condition will not 11 11 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) give any entitlement to the prosecution for seeking an extension of 180 days. The language used in the proviso is absolutely unambigous and clear and has to be given a literal construction. Otherwise also the grant or non-
non-grant ant of a default bail is on a different pedestal as compared to grant or non non-grant grant of regular bail under Section 439 of the Code of Criminal Procedure. The grant of bail under Section 167(2) Cr.P.C is a statutory and indefeasible right. The present is a case case falling under the NDPS Act and therefore the period of 90 days envisaged under Section 167(2) Cr.P.C has to be read alongwith Section 36A of the NDPS Act and for the purpose of the present case the period of 180 days can be extended by virtue of sub--section tion (4) of Section 36A of the NDPS Act for a further pe period iod of one year but subject to the conditions specified under the proviso which are contained in the proviso to sub sub-section section (4) of Section 36A of the NDPS Act.
11. A perusal of the report of the Publ Public ic prosecutor which is Annexure P-2 P in CRR-2105-2023 2023 would show that it only mentioned that as per DO letters written by the police efforts were made to collect the FSL report which was not prepared till date and therefore request was made to the Court to extend the time for collecting the FSL report and to submit the same before the Court Court.
xxxxxx A perusal of the aforesaid would show that it only states that time may be given for collecting the FSL report and extension of time was required for the the purpose of collection of the FSL report whereas as per proviso to sub-section sub section (4) of Section 36A of NDPS Act, the essential condition sine qua non is that reason has to be mentioned for seeking detention of the accused and also the progress of the investigation whereas nothing is stated in the aforesaid report investigation pertaining to progress of the investigation nor any reason has been given seeking detention of the accused. In this way, this Court is of the view that both the aforesaid conditions have not been ssatisfied atisfied in the aforesaid report (Annexure P-2) P 2) ex facie."
15. Another co-ordinate co ordinate bench of this Court in Hoshiar Singh @ Gora vs. State of Punjab, Punjab, Criminal Revision No. 2537 of 2018 decided on 17.11.2018, has set aside the order of the Trial Court extending time for a 12 12 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) period of three months for filing the final report under Section 173(2) of the Cr.P.C., and directed the accused to be released on bail by observing inter alia:-
"Considering the view taken by this this Court in Sanjeev Kumar's case (supra), I find that merely because the report of the chemical examiner/FSL was not received, is not a ground to decline the concession of bail to the petitioner as per proviso to Section 36- 36
A(d)(4) of the NDPS Act. In case, case, the investigation is not completed within a period of 180 days, the Court can extend the said period on a request of the public prosecutor, indicating the progress of the investigation and specific reasons for the detention of the accused beyond the period period of 180 days. In the application dated 23.04.2018 (Annexure P2) filed by the public prosecutor, the only reason given is that the report of the chemical examiner/FSL is awaited and arrest of some other persons is effected and therefore, this cannot be a ground for detention of the petitioner beyond the period of 180 days. Therefore, this Court is of the considered view that the petitioner deserves the concession of bail during the pendency of the petition. Even otherwise, in view of the judgement of the H Hon'ble on'ble Supreme Court in Mohan Lal's case (supra), the complainant ASI Paramjit Singh and the investigating officer are the same officer and no second investigating officer was appointed and therefore it will be open for the trial Court to decide whether th thee investigation was carried out in accordance with law or not."
16. Learned Counsel for the petitioner also placed reliance upon the judgment passed by the co-ordinate ordinate bench of this Court in Pritam's case (supra), wherein it was held as under:--
"7. In Harmandeep Singh @ Harman v. State of Punjab Punjab,, 2015 SCC OnLine P&H 9034 similarly the accused was ordered to be released on bail where time for submitting the final report by the Investigating Agency had been extended by the Trial Court with the following observations:-
o '19. Having heard learned counsel for the parties and going through contents of the case and case law cited at the bar, it is 13 13 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) found that application submitted by Additional Public Prosecutor does not satisfy the ingredients and requirement of law in terms of Sanjay Kumar Kedia @ Sanjay Kedia's case (supra) and other decisions rendered by this Court as mentioned in the preceding para. No reasons much less specific reasons have been stated in the application as to how the detention of the petitioner oner could have served any valid purpose beyond period of 180 days. In the event of prosecution not obtaining report of Chemical Examiner for the purposes of filing challan under Section 173 Cr.P.C, there is noncompliance of Section 36 36-A of the N.D.P.S. Act.
t. 20. For the reasons recorded above, this Court finds that the application seeking extension of time for filing report under Section 173 Cr.P.C., and impugned order passed thereon by the Judge, Special Court, Tarn Taran, granting extension in time has been en made in routine and mechanical manner. 21. Consequently, this Court is of the considered view that the petitioner(s) deserves concession of bail in terms of Section 167(2) Cr.P.C.'.
8. In Hardeep Singh v. State of Punjab Punjab, 2015 SCC OnLine P&H 12232, it was was observed by this Court:
Court:-
"3. Here it would be pertinent to mention that no notice of application moved by prosecution for extension of time dated June 13, 2015 was given to the accused. No reply has also been sought from petitioner by learned trial Cour Court.
t. Moreover, period under Section 36-A A (4) of the Act was also extended vide order dated June 15, 2015 i.e. after the expiry of 180 days though an application was moved on June 13, 2015. After the expiry of period of 180 days on June 13, 2015, an indefeasible ble right had accrued to the petitioner. There is also nothing on record to suggest that petitioner was afforded an ample opportunity to defend application for extension of time.
4. By now it is pretty settled that Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused which is otherwise wise not permissible. After the expiry of extended period, an indefeasible right stood accrued to the petitioner on March 14 14 of 16 ::: Downloaded on - 13-10-2024 00:03:32 ::: Neutral Citation No:=2024:PHHC:126852 CRR No. 1759 of 2023 (O&M) 14, 2015, which has been sought to be scuttled down by learned trial Court by way of allowing application for extension of time, that too, without hearing the accused/petitioner, against whom, the order was passed."
9. The present case appears to be squarely covered by the aforesaid decisions of various Benches of this Court. Perusal of both the applications of the State dated 22.02.2021 and 18.03.2021, which are on record as Annexures P P-3 & P-4, 4, would reveal that such extension of time was sought on the ground that the Chemical Examination / FSL Report had not been received from the Director of Forensic Science Laboratory, Madhuban (Karn (Karnal).
al). Mechanical repeated extension of time on the same ground by the Ld. Trial Court in the circumstances cannot be treated as anything else except mechanical orders passed by the Ld. Trial Court. No exceptional circumstances were revealed which could have indicated why the final report could not have been presented within the statutory period of 180 days or thereafter even in the extended period of two months, although in its recent decision in ""S. S. Kasi v.
State through the Inspector of Police Samaynallur Police Station Madural District, 2020 SCC OnLine SC 529", the Apex Court has observed that even in very exceptional circumstances such as the lockdown announced by the Government of India in the wake of the Covid pandemic 2020 would not restrict the rights of an accused regarding his indefeasible indefeasible right to get a default bail, as would be clear from the following observations of the Supreme Court:
Court:-
'26. We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section ion 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission submission of charge sheet within the time prescribed. The learned Single Judge committed serious error in reading such restriction in the order of this Court dated 23.03.2020."15
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17. Learned counsel for the petitioner has further placed reliance nce on Gurmej Singh's case (supra) passed by another co co-ordinate ordinate bench of this Court ourt wherein again it has been held that for seeking extension of time;
time non-receipt receipt of the chemical examiner report could not be stated to be a compelling reason reas for the detention of the accused beyond a period of 180 days, and therefore prayer for grant of default bail was allowed in favour of the petitioner.
18. A perusal of the impugned order would show that the only reason given for allowing the applications for extension was non-receipt receipt of the FSL report, and no other specific reasons were stated therein for keeping the petitioner in further detention, beyond th the e stipulated period of 180 days as prescribed under Section 36A(4) of the NDPS Act and the same, thus, does not meet the parameters laid down in various judgments discussed here in above.
above
19. Keeping in view of the above circumstances, besides considering the fact that the petitioner is not involved in any other case, the petition is allowed.
allowed The impugned order dated 26.07.2023 is hereby set aside and the he petitioner is ordered to be released on bail on his furnishing adequate bail bonds/surety to the satisfaction of the learned trial Court/Duty Magistrate, concerned.
concerned
20. Pending miscellaneous application(s), if any, shall also stand disposed of.
17.09.2024 ( HARKESH MANUJA )
sanjay JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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