Punjab-Haryana High Court
Sarabjit Singh @ Sabi vs State Of Punjab on 5 December, 2013
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
Rathore Poonam
Crl.Misc.No.M- 38424 of 2013 -1- 2013.12.09 11:23
I attest to the accuracy and
integrity of this document
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.M- 38424 of 2013
Date of Decision:-05.12.2013
Sarabjit Singh @ Sabi ....Petitioner(s)
vs.
State of Punjab ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AMOL RATTAN SINGH
***
Present:- Mr. Ashok Giri, Advocate,
for the petitioner.
Mr. R.S. Randhawa, Addl. A. G., Punjab.
***
AMOL RATTAN SINGH , J.
Learned counsel for the petitioner has addressed detailed arguments on the issue over a few dates, where, initially, this Court was not inclined to agree to the submissions made by the learned counsel, in respect of the applicability of Section 167(2) Cr.P.C. for grant of bail, in view of the fact that the decision on his application for bail, moved under that provision, was still under consideration of the trial Court when the report under Section 173 Cr.P.C. was presented and, as such, this Court was of the opinion that, as per the judgment in Sanjay Dutt vs. State through C.B.I. Bombay, (1994) 5 SCC 410, bail could very well be declined on that very ground, i.e. presentation of the report under Section 173 Cr.P.C. during the pendency of the bail application.
Rathore PoonamCrl.Misc.No.M- 38424 of 2013 -2- 2013.12.09 11:23 I attest to the accuracy and integrity of this document However, Mr. Giri, learned counsel, has placed reliance upon a judgment of the Supreme Court in Uday Mohanlal Acharya vs. State of Maharashtra, (SC) 2001 (2) RCR (Criminal) 452, wherein, after considering Sanjay Dutt's case (supra), it has been held as under:-
"In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression 'availed of ' to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand."
Thus, presentation of the report under Section 173 Cr.P.C., during the pendency of an application for bail, invoking the provisions of Section 167(2) Cr.P.C., obviously has been held to not take away the right of a person for grant of such bail under that provision.
Though in Uday Mohanlal Acharya's case (supra), the Supreme Court was dealing with a case under the Maharashtra Protection of Rathore Poonam Crl.Misc.No.M- 38424 of 2013 -3- 2013.12.09 11:23 I attest to the accuracy and integrity of this document Interest of Depositors (Financial Establishment) Act, 1999, interpretation of the applicability of Section 167(2) Cr. P.C. was discussed, after discussing the Constitution Bench judgment in Sanjay Dutt's case (supra), which was a case related to the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Mr. Ashok Giri, learned counsel, has pointed out that Section 17(5) of the TADA Act is pari materia with Section 37 of the NDPS Act and as such, the ratio of the judgment would apply to cases under the NDPS Act also.
Now, coming to the issue as to whether the "challan" in this case was presented on the 181st day or the 180th day, after the petitioner was produced in Court on 6.4.2013 and was sent to judicial custody by the Judicial Magistrate.
It is stated, and not denied by the State, that the "challan" was presented on 3.10.2013. As such, after taking into account the fact that the petitioner was sent to judicial custody on 6.4.2013, such date would also have to be counted for the purpose of calculating 180 days, beyond which he cannot be kept in custody, as per Section 167(2) Cr.P.C., read with Section 36-A (4) of the N.D.P.S. Act, 1985.
The "challan" was, thus, presented on the 181st day, if 6.4.2013 is also taken into account as the date on which he was in custody.
The fact that the date on which a person is sent to judicial custody is to be counted within that statutory period of 60/90/180 days, was considered by a Single Bench of the Orissa High Court in Ada alias Adeita Behera vs. The State, 1996 Crl. L.J. 3130, wherein the learned Single Rathore Poonam Crl.Misc.No.M- 38424 of 2013 -4- 2013.12.09 11:23 I attest to the accuracy and integrity of this document Judge quoted from the judgment of the Supreme Court passed in Chaganti Satyanarayana vs. State of Andhra Pradesh, AIR 1986 Supreme Court 2130, as under:-
"Thus in any view of the matter i.e. construing proviso
(a) either in conjunction with sub-Section (2) of Section 167 or as an independent paragraph, we find that the total period of 90 days under clause (1) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest."
This judgment cited by the learned counsel for the petitioner, obviously covers the case of the petitioner, and logically so, because 6.4.2013 was also a day he spent in custody, after the order of the Judicial Magistrate concerned.
Though the interpretation given above was in the context of whether the date of arrest or date of remand has to be taken as the date for calculation of the number of days, however, since it was held that it is to be from the date of remand, hence, in my opinion, that would be a day to be included in such calculation.
In view of the above, without commenting upon the merits of the case, the petitioner, in my opinion, would be entitled to bail as per the provisions of Section 167(2) Cr.P.C., read with Section 36-A (4) of the NDPS Act. He shall, consequently, be enlarged on bail, upon furnishing adequate bail/surety bonds to the satisfaction of the trial Court.
December 05, 2013 ( AMOL RATTAN SINGH ) poonam JUDGE