Punjab-Haryana High Court
Shri Kant @ Rinku vs State Of Punjab on 14 March, 2014
CRM-M-38619 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-38619 of 2013 (O&M).
Decided on:-March 14, 2014.
Shri Kant @ Rinku. .........Petitioner.
Versus
State of Punjab. .........Respondent.
CORAM: Hon'ble Mr. Justice Dr. Bharat Bhushan Parsoon.
*****
Argued by:- Mr. M.K.Singla, Advocate for the petitioner.
Mrs. Amarjeet Kaur Khurana, Addl. Advocate General, Punjab.
Dr. Bharat Bhushan Parsoon, J.
The petitioner confined in Sub Jail, Malerkotla has filed the present petition under Section 439 of the Code of Criminal Procedure read with Sections 167(2) and 482 Cr.PC for grant of regular bail in case FIR No.31 dated 9.3.2013 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) registered at Police Station, City Malerkotla, District Sangrur, claiming that the prosecution had failed to present the report under Section 173 Cr.PC within the stipulated period and his application for bail was wrongly rejected on 21.9.2013 vide which time to file report under Section 173 Cr.PC, was wrongly extended by the Court.
2. The petitioner is cited as an accused. 45 bottles of Rexcof each weighing 10 ml. and 20 strips of Parvan Spas Capsules, each strip having 10 capsule (total 200 capsules), were allegedly recovered from the petitioner- accused.
Yag Dutt 2014.03.15 13:44 I attest to the accuracy and integrity of this document CRM-M-38619 of 2013 -2-3. The claim of the petitioner is contested by respondent-State. It is averred that the investigating officer had made every effort to get the report from the Forensic Science Laboratory, Mohali (hereinafter mentioned as the Laboratory) but he could not succeed as it was beyond his control and consequently, in the interest of justice, the time for filing report under Section 173 Cr.PC was got extended. Validity and legality of order of 21.9.2013 passed by the Special Court, Sangrur is asserted.
4. Hearing has been provided to learned counsel for the parties while going through the paper book.
5. Since the petitioner is attributed possession of commercial quantity of narcotics, application of proviso to Rule 4 of Section 36A of the Act is involved. For ready reference, said proviso is appended as below:
"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 involving commercial quantity the references in sub-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 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."
6. From perusal of the aforesaid provision, it becomes clear that in case an accused continues in custody, then maximum period of 90 days fixed under Section 167(2) Cr.PC for filing of report under Section 173 Cr.PC, has Yag Dutt 2014.03.15 13:44 I attest to the accuracy and integrity of this document CRM-M-38619 of 2013 -3- legislatively been increased to 180 days for certain category of offences under the Act. The proviso appended to Section 36A(4) authorizes yet further period of detention of the accused by extension of time for furnishing final report under Section 173 Cr.PC. This period in total may go upto one year. The only rider, however, is that the conditions stipulated by the said proviso, are complied with.
7. Submission of final report under Section 173 Cr.PC can be postponed beyond 180 days in cases of certain type of cases under the Act referred to in the stated proviso itself. This extension beyond 180 days is not automatic. Process of such extension starts when report of the Public Prosecutor (indicating the progress of the investigations, detailing specific reasons for detention of the accused beyond the said period of 180 days) is filed before the Special Court. Though this proviso does not talk about issuance of notice to the accused on the report of the Public Prosecutor filed before the Special Court for seeking extension of time beyond 180 days for filing report under Section 173 Cr.PC, but this legislative vedge is sought to be bridged by judicial mandate found in Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and another 2010(1) RCR (Criminal) 947. The Hon'ble Supreme Court has held that under Section 36A(4) of the Act, extension could be given by the court 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 180 days.
8. In short, the conditions to be complied with by the Special Court before extending the period of detention of the accused beyond 180 days without furnishing of report under Section 173 Cr.PC by the investigating agency, are as under:
(1) a report of the public prosecutor;
(2) which indicates the progress of the investigation;
Yag Dutt
2014.03.15 13:44
I attest to the accuracy and
integrity of this document
CRM-M-38619 of 2013 -4-
(3) specifies the compelling reasons for seeking the detention
of the accused beyond the period of 180 days; and,
(4) notice is given to the accused.
9. The undisputed facts may be recapitulated to ascertain the claim of the petitioner who was arrested on 9.3.2013. An application under Section 167(2) Cr.PC read with Section 36A(4) of the Act was moved by the petitioner before the trial court on 12.9.2013 mentioning therein that even after expiry of more than 180 days, the challan had not been presented in the case. Notice of this application was given to the State on 13.9.2013 for 17.9.2013 on which date the case was adjourned to 21.9.2013 for report of the investigating officer. When the matter was taken up for consideration by the Special Court on 21.9.2013, during the course of arguments, it came to the knowledge of the petitioner that even the prosecution had moved an application for extension of time.
10. Perusal of this paper book reveals that an application under Section 36A(4) of the Act for extension of time was moved before the Special Court on 6.9.2013 by the Public Prosecutor whereupon notice was ordered to be issued for 20.9.2013, which notice, in fact, was never issued as order of 6.9.2013 of the Special Court to that effect was not complied with. When an application was moved by the petitioner for obtaining copy of the said notice, said copy could not be delivered to the petitioner by the copying agency of the lower courts as no such notice had been found in the file. Even till hearing on the matter of bail on 21.9.2013, no notice had been served on the petitioner-accused. Pendency of the application filed by the prosecution for extension of time rather came to the knowledge of the counsel for the petitioner only on 21.9.2013.
11. Order of 21.9.2013 passed by the Special Court read in conjunction with application moved by the prosecution for extension of time reveals that the order of extension of time by three months after completion of 180 days of arrest, was made in routine. Though in application moved in Yag Dutt 2014.03.15 13:44 I attest to the accuracy and integrity of this document CRM-M-38619 of 2013 -5- writing to the Special Court, it is mentioned that there are compelling reasons for extension of time but, in fact, there is no compliance with the proviso to Section 36A(4) of the Act.
12. Application for extension of time moved by the prosecution on 6.9.2013 has its foundation in the request made by the investigating officer for seeking extension of time for filing final report under Section 173 Cr.PC on the plea that chemical report from the laboratory, had not been received.
13. Sample for chemical analysis was sent to the said laboratory on 15.3.2013. Though application moved by the prosecution has a mention therein that a reminder was also issued to the laboratory, but particulars thereof are missing. When such reminder was sent, what action was taken thereon and what efforts were made for obtaining the report within time from the laboratory, are the particulars which are completely missing. There is absolutely no effort shown to have been made by the investigating officer by sending any reminder after two months or so for seeking analysis report for preparing the challan as otherwise, the entire investigation was almost complete. Had some efforts been made at the level of the investigation officer even by invoking intervention of his senior officer in approaching the Director of the laboratory for getting the report at the earliest stating reasons for its early requirement i.e. necessity of filing the challan within a period of 180 days of arrest of the accused, the things would have moved with speed and in right direction. In fact, there is no effort shown to have been made for obtaining analysis report from the laboratory even when six months were going to be over after sending the sample.
14. Application dated 6.9.2013 of the prosecution records satisfaction of the Public Prosecutor about efforts made for completing the investigations expeditiously, which is to the following effect:
"That I am satisfied that the investigating officer of this case made every effort to receive the report of FSL Mohali. But the same was beyond his control, so that extension of above Yag Dutt 2014.03.15 13:44 I attest to the accuracy and integrity of this document CRM-M-38619 of 2013 -6- 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."
15. When this satisfaction recorded by the prosecution is evaluated in the interface of the factual matrix and record, it is clear that it is also recorded in routine and in a casual way.
16. In similar circumstances, a co-ordinate Bench of this Court has considered exactly 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 titled Jeevan Sharma @ Vicky v. 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 Kumar Kedias' case, as extension of time for 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."
17. Right to be released on bail under proviso to Section 167(2) Cr.PC is indefeasible. It is enforceable by accused from time of default till filing of challan. But this right of accused to be released on bail would get Yag Dutt 2014.03.15 13:44 I attest to the accuracy and integrity of this document CRM-M-38619 of 2013 -7- extinguished if application under Section 167(2) Cr.PC is filed after the charge sheet is received by the court.
18. Admittedly, the petitioner had moved application under Section 167(2) Cr.PC on 12.9.2013 whereas the challan had been filed on 1.11.2013. Application moved by the prosecution on 6.9.2013 before the Special Court being not in conformity with the conditions laid down in the proviso to Section 36A(4) of the Act becomes legally inconsequential.
19. During the course of arguments, it has been stated by counsel for the State that there is no case pending against the petitioner and he is not a habitual offender.
20. In view of the circumstances explained above, by setting aside order dated 21.9.2013 passed by the Special Court, Sangrur, this petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail/surety bonds to the satisfaction of the Special Court, Sangrur.
21. Nothing observed above shall have any bearing on the merits of the case.
(Dr. Bharat Bhushan Parsoon) Judge March 14, 2014 'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes Yag Dutt 2014.03.15 13:44 I attest to the accuracy and integrity of this document