Bombay High Court
Sunil Vasantrao Phulbande And Anr. vs State Of Maharashtra on 13 February, 2002
Equivalent citations: 2002(3)MHLJ689
Author: D.D. Sinha
Bench: D.D. Sinha
ORDER D.D. Sinha, J.
1. Heard Shri Patwardhan, learned Counsel for the applicants, and Shri Dhote, learned Additional Public Prosecutor for the non-applicant.
2. The present criminal application is moved by the applicants under Section 439 of Code of Criminal Procedure for grant of regular bail for the offences punishable under Sections 20, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. Shri Patwardhan, learned Counsel for the applicants, submits that the applicants are permanent residents of Ramtek, District Nagpur. The applicant No. 1 is dealing in business of travels and owns and possesses one Maruti Van bearing Registration No. MII-29/C-250. The applicant No. 2 is working as Driver with the applicant No. 1. The Maruti Van owned by the applicant No. 1 was hired by one Rajesh Roy for the purpose of going to Andhra Pradesh for his work and the said vehicle was returning back on 23-6-2001. On that day, Police officials of Pandharkawada Police Station, District Yavatmal received information that ganja was being transported in the said vehicle. The Police officials made arrangement for search of the vehicle and during the course of search of the vehicle, ganja worth 100 kgs., which was kept in gunny bags, was seized from the vehicle. On 23-6-2001, offences under Sections 20, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were registered vide Crime No. 3122/2001 against the applicants and they were arrested. On 24-6-2001, both the applicants were produced before the Judicial Magistrate, First Class, Pandharkawada and they were remanded to Police Custody.
4. It is contended by the learned Counsel for the applicants that samples were drawn from ganja, which was seized on 23-6-2001 and same were sent to the Chemical Analyser for necessary analysis at Nagpur on 26-6-2001. Investigation was carried out by the Police. On 4-8-2001, Police filed charge-sheet in the Court in the absence of necessary relevant documents including Chemical Analyser's report. It is further contended by the learned Counsel that on 4-8-2001 though the applicants were present in the Court, necessary documents under Sections 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act as well as copy of Chemical Analyser's report were not supplied to the applicants as required under Section 207 of the Code of Criminal Procedure and matter was adjourned twice at the request of the prosecution. It is submitted that charge-sheet was filed on 4-8-2001, but all the above documents, were not supplied to the applicants, which is inconsistent with the procedure contemplated under Section 207 of the Code. On 12-9-2001, for the first time, the applicants were supplied copy of charge-sheet and that too, without the aforesaid documents. It is contended that though the report of Chemical Analyser was received by the Police Station Officer, Pandharkawada on 11-8-2001, no steps were taken by the Police to forward it to the Court at Yavatmal.
5. The learned Counsel for the applicants further submits that the applicants moved first application bearing No. 240/2001 for grant of regular bail on merits. However, the same was rejected by the Special Judge. On 3140-2001, the applicants moved another application bearing No. 382/2001 seeking their release on bail in view of provisions of Section 167(2) of the Code since prosecution failed to file charge-sheet/report contemplated under Section 173(2) and (5) of the Code within a period of ninety days from the date of first remand, i.e. 24-6-2001 and they were entitled to be released on bail.
6. It is contended by the learned Counsel for the applicants that since the offences registered against the applicants are punishable for the term, which may extend to five years and fine in case of Section 20 of the Act and rigorous imprisonment for a term, which shall not be less than ten years, but which may extend to twenty years and fine for the offences punishable under Sections 22 and 25 of the Act, the case of the applicants would fall within the ambit of Section 167(2)(a)(i) of the Code and the Magistrate is not entitled to detain the applicants in custody beyond the period of ninety days from the date of first remand of the applicants, i.e. 24-6-2001. It is contended that the prosecution ought to have filed the charge-sheet as contemplated under Section 173(2) and (5) of the Code within a period of ninety days. However, in the instant case, though the charge-sheet is filed by the prosecution on 4-8-2001, i.e. within ninety days from the date of first remand of the applicants, the same being incomplete and was not accompanied with the documents contemplated under Sub-section (5) of Section 173 of the Code, cannot be treated as a charge-sheet/report, which would empower the Magistrate to take cognizance of the offences and hence, applicant, are entitled to be released on bail in view of provisions of Section 167(2) of the Code. In order to substantiate his contentions, reliance is placed by the learned Counsel on the judgment of Andhra Pradesh High Court in Matchumari China Venkatareddv and Ors. v. State of Andhra Pradesh, 1994 Cri.LJ. 257 as well as judgment of this Court in Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra, 1991(1) Mh.LJ. 656 = 1991 Cri.LJ. 3329.
7. On the other hand, Shri Dhote, learned Additional Public Prosecutor for the non-applicant, submits that the applicants are not entitled to be released on bail in view of provisions of Section 167(2) of the Code since in the instant case, charge-sheet is filed by the Police in the Court on 4-8-2001, which is well within the stipulated period contemplated under the provisions of Section 167(2) of the Code. It is contended that once the charge-sheet is filed, the benefit flowing from Section 167(2) of the Code is not available to the applicants and they cannot be released on bail on this count. It is further contended that as far as documents pertaining to Sections 42(1) and 57 of the Narcotic Drugs and Psychotropic-Substances Act as well as Chemical Analyser's report are concerned, they were not enclosed with the charge-sheet/report, which was filed in the Court on 4-8-2001. However, Chemical Analyser's report was submitted to the Court on 9-11-2001 and document pertaining to Section 42(1) of the Act, i.e. information required to be sent to the superior Officer was submitted in the Court on 7-2-2002. It is contended that formality of filing, charge-sheet within the stipulated period having been completed by the prosecution/ merely because some of the documents were filed in the Court at later point of time, that by itself does not give right to the applicants to seek release on bail in view of provisions of Section 167 of the Code.
8. I have given my anxious consideration to the contentions canvassed by the learned respective Counsel for the parties and perused the judgments of Andhra Pradesh High Court as well as this Court referred to by the learned Counsel for the applicants. Before I adjudicate upon question of law, there are certain relevant undisputed facts, which are as follows :
The applicants were arrested on 23-6-2001 for the offences under Sections 20, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act in Crime No. 3122/2001. On 24-6-2001, both the applicants were produced before the Judicial Magistrate, First Class, Pandharkawada and remanded to Police Custody, The charge-sheet/report was filed on 4-8-2001 in the Court without enclosing the documents contemplated under Section 42 of the Act as well as report of Chemical Analyser. The report of Chemical Analyser was filed in the Court for the first time on 9-11-2001 and the document regarding information required to be given to the superior in writing as contemplated under Section 42(1) of the Act was filed in the Court on 7-2-2002. Both these documents are filed beyond the period of ninety days from 24-6-2001, i.e. the date on which applicants were remanded to Police Custody by the Judicial Magistrate, First Class.
9. On the backdrop of above undisputed facts, the question which arises for my consideration in the present case is whether mere filing of charge-sheet within the prescribed time, unaccompanied by material papers as contemplated under Section 173(5) of the Code renders it incomplete and such filing of charge-sheet amounts to failure to file the same, which in turn confers on the accused right to be released on bail under Section 167(2) of the Code since Court is not competent to take cognizance of the offence on the basis of such incomplete charge-sheet/report.
10. The above referred question, in my opinion, is no more res integra and is concluded by the judgment in the case of Matchumari China Venkatareddy and Ors. v. State of Andhra Pradesh ,1994 Cri.L.J. 257 as well as in the case of Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra, 1991(1) Mh.LJ. 656 = 7997 Cri.LJ. 3329.
11. Andhra Pradesh High Court in para (9) of the judgment in Matchumari China Venkatareddy and Ors. v. State of Andhra Pradesh, 1994 Cri.LJ. 257 has observed thus :
"9. Fairness and reasonable procedure is what is contemplated by the expression "procedure established by law" in Art. 21 of the Constitution. Section 167(2), Criminal Procedure Code was not there in the old Code. It was introduced in 1973 amendment. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days or 90 days as the case may be. An order for release of bail made under proviso to Section 167(2) is not defeated by lapse of lime, the filing of the charge-sheet or by remand to custody under Section 309(2). The order of bail can only be cancelled under Section 437(5) or 439(2). The duty of the police is to forward the police report after completion of investigation under Section 173(2) Criminal Procedure Code. The forwarding is done for the purpose of taking the same on record and file of the court and then only, the same is perused by the Court to take cognizance of the offence. Mere forwarding without meaning it to be taken on file is not contemplated under law. If the police report is forwarded to the Magistrate for taking it on file, but if the Magistrate finds that the said report, is not in consonance with Section 173(2) read with Section 173(5) Criminal Procedure Code, he declines to take it on record and that act is only administrative and not judicial. The judicial act commences only when the charge-sheet is in order and the Magistrate proceeds further under Chapter XVI. Unless the charge-sheet is in the official custody of the court together with its accompaniments to be furnished to the accused, it cannot be construed that there is a filing of charge-sheet. Chapter XVI relates to commencement of proceedings before Magistrates, process to be issued when Magistrate takes cognizance of the offence. The next stage is framing of charges under Chapter XVII. Next stage is trial and the eventual being the judgment.
The observations in para (10) of the same judgment are also relevant for the controversy in issue. Those read thus :
"......It is not sufficient for the prosecution to just file some sort of police report not conforming to the provisions of Sections 173(2) and 173(5) Criminal Procedure Code and then play fraud not only on the statute but also on the Constitution. This kind of tactics by the police to water down and nullify the constitutional and statutory guarantees cannot be countenanced and in fact, the courts should keep a strict vigil on this kind of unscrupulous acts of officers to get over the constitutional and statutory mandate of filing a charge-sheet within the stipulated time under the guise of filing defective charge-sheet and then knowing fully well that it will be returned. Until a charge-sheet with all specifications enumerated under Section 173(2) Criminal Procedure Code and accompaniments under Section 173(5) Criminal Procedure Code is filed into the court and the court scrutinises it on its administrative side to satisfy that all such documents are in order and unless the court takes it on record and keeps it on its file for examination for taking cognizance or not, it cannot be said that a police report (charge-sheet) is filed as contemplated under Section 173(2) Criminal Procedure Code. Once the police report is filed, it should be capable of examination for the purpose of judicial determination to take cognizance of the offence and to proceed further into Chapter XVI Criminal Procedure Code and any act short of that cannot be construed as 'taking cognizance'."
Similar view is taken by this Court in the case of Sharadchandra Vinayak Dongre and Ors. v. State of Maharashtra, 1991(1) Mh.LJ. 656 = 1991 Cri.L.J. 3329 where it has been observed that incomplete charge-sheet cannot be treated as Police report at all as contemplated under Section 173(2) of the Code.
12. In the instant case, it is not in dispute that report of Chemical Analyser is the foundation on the basis of which Magistrate can proceed to take cognizance of the offences. The contraband, which is seized in the present case, is Ganja and unless and until sample, which was drawn by the prosecution, conforms with the article, which is seized during investigation, i.e. Ganja, the Magistrate is not in a position to proceed to take cognizance of the offence. The charge-sheet/report as contemplated under Section 173(5) of the Code, forwarded to the Magistrate should be such that on the basis of which Magistrate should be able to proceed further and take cognizance. The documents, which are required to be accompanied with the charge-sheet/report as contemplated under subSection (5) of Section 173 of the Code, therefore, assume importance, without which charge-sheet/report submitted by the Police under Section 173 of the Code would be incomplete and Magistrate also may not be in a position to proceed to take cognizance on the basis of the said report. The concept of filing of charge-sheet by the Police in the Court must fulfil requirement of Section 173(2) and (5) of the Code and it is only after such compliance, report which is filed by the Police in the Court can be construed as complete report under Section 173(2) and (5) of the Code.
13. It is true that in the given case, certain documents which are formal in nature, if not accompanied with the report/charge-sheet may not change the nature of report/charge-sheet contemplated under Section 173(2) and (5) of the Code particularly when material is sufficient for the Magistrate to take cognizance of the offence as per provisions of the Code. However, in the instant case, the Chemical Analyser's report is the basis for deciding whether substance which is seized during raid is Ganja or not, which would determine whether provisions of the Narcotic Drugs and Psychotropic Substances Act are attracted or not. The Magistrate in such situation undoubtedly cannot proceed to take cognizance of the offence for want of complete charge-sheet/report and, therefore, in the present case, the charge-sheet/report which is submitted by the Police in the Court on 4-8-2001 cannot be said to be a charge-sheet/report as contemplated under Section 173(5) of the Code.
14. There is another dimension to the issue in question. In the given set of circumstances, Police may submit a charge-sheet in the Court though incomplete, but within a stipulated period as contemplated under Section 167(2) of the Code, i.e. sixty days or ninety days, if all the relevant documents are filed in the Court as contemplated under Section 173(5) of the Code, in that event, the accused cannot seek bail in view of provisions of Section 167(2) of the Code. However, in the instant case, Chemical Analyser's report was filed in the Court beyond the period of ninety days, i.e. on 9-11-2001 and, therefore, prosecution in the present case cannot take any advantage in this regard. It is needless to mention that if the Police fails to file charge-sheet/report contemplated under Section 173 of the Code within the stipulated period of sixty days or ninety days, a right is accrued to the accused to seek release on bail and Courts in such situation are expected to dispose of such applications forthwith without granting time to prosecution to fill up the lacuna.
15. In the instant case, the trial Court ought to have disposed of forthwith the application of the applicants whereby release was sought in view of provisions of Section 167(2) of the Code, without granting further time to the prosecution. In any case, prosecution, in the instant case, did not file all material documents within the stipulated period and, therefore, report/charge-sheet which is filed by the prosecution is not in conformity with Section 173(5) of the Code. The applicants, in my opinion, are entitled to be released on bail since prosecution failed to file charge-sheet/report within the stipulated period as contemplated under Section 167(2) of the Code. Hence, I pass the following order:
The applicants be released on bail subject to furnishing P.R. bond of rupees ten thousand each with one surety in like manner. They are directed to visit Police Station, Ramtek twice a week, i.e. on every Monday and Sunday between 4.30 p.m. and 6.30 p.m. for the period of six months from today.