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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-26380 of 2014 Date of Decision: 26.08.2014
Gurwinder Singh
....Petitioner
Versus The State of Punjab
....Respondent
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:-
Mr. Gorakh Nath, Advocate for the petitioner. Mr. T.N. Sarup, Addl. A.G., Punjab for the respondent-State. *****
DAYA CHAUDHARY, J. Petitioner-Gurwinder Singh has filed the present petition under Section 439 Cr.P.C read with Section 167(2) Cr.P.C for grant of regular bail pending trial in case FIR No.5 dated 10.01.2014 registered under Section 22 of the NDPS Act at Police Station Sirhind, District Fatehgarh Sahib. Petitioner moved an application under Section 167(2) Cr.P.C for grant of statutory bail on the ground that the period of 180 days had expired and no challan was presented before the trial Court. He was arrested by the police on 10.01.2014 for possessing 800 tablets of DIATIL punishable under Section 22 of the NDPS Act. The period of 180 days for investigation and presentation of charge sheet had expired. The petitioner claimed bail in view of provisions under Section 167(2) of the Code. The said application was dismissed by the trial Court on the ground that an application was already moved by the prosecution for extension of time for further 60 days and the petitioner was not entitled for bail. It is also mentioned in the order that the time of 60 days was extended to the GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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prosecution to file challan and that period would start to run from that day only. Now the petitioner has approached this Court for grant of regular bail by invoking provisions of Section 167(2) of the Code. Learned counsel for the petitioner submits that the petitioner moved an application for bail under Section 167(2) of the Code on 10.07.2014 on expiry of period of 180 days as the challan was not presented before the Court and the petitioner had got an indefeasible right to get bail. The application moved by the prosecution for extension of time was allowed and 60 days more time was granted as per the provisions of Section 36-A(4) of the NDPS Act. Learned counsel for the petitioner has also relied upon judgment of Hon'ble the Apex Court in case Uday Mohanlal Acharya vs State of Maharashtra 2001(2) RCR (Criminal) 452 as well as the judgment of this Court in case Sarabjit Singh @ Sabi vs State of Punjab 2014(1) RCR (Criminal) 341, in support of his contentions. Learned State counsel submits that the application for extension of time was already moved by the investigating agency before the expiry of period of 180 days and the period was extended as the Chemical Examiner's Report was still awaited. He has also raised objection that against order in declining bail under Section 167(2) of the Code, a revision lies before this Court and not a petition under Section 439 Cr.P.C. Heard the arguments of learned counsel for the parties and have also perused the impugned order of dismissing application of the petitioner and allowing the application moved by the prosecution for extension of time. Section 167 of the Code is reproduced as under :“167.
Procedure
when
investigation
completed in twenty-four hours. GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
cannot
be
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1. XXXX 2. The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for 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 – (a)
the Magistrate may authorize 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 authorize the detention of the accused person in custody under this Paragraph for a total period exceeding, -(i) relates
ninety to
an
days, offence
where
the
punishable
investigation 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 person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of the Chapter;” Section 167(2) of the Code provides that on the expiry of stipulated period, the accused person is to be released on bail, in case, the prosecution is not able to present the charge sheet within that period. GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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Admittedly, the prescribed period of 180 days for investigation and presentation of charge sheet expired on 10.07.2014. The petitioner was arrested on 10.01.2014. The prosecution moved an application for extension of time on 09.07.2014 i.e a day before the expiry of period of 180 days. The application moved by the prosecution was allowed by the lower Court as the investigation could not be completed as the Chemical Examiner's Report was not received. An application was also moved by the petitioner for grant of bail as per provisions provided under Section 167(2) of the Code. The application moved by the prosecution for extension of time was allowed but the application moved by the petitioner for grant of bail was dismissed. The stand of the trial Court while dismissing the application moved by the petitioner for grant of bail is that the investigation was incomplete and it was not the fault of the Investigating Officer and the extension for period of time was granted as per provisions provided in proviso to Section 36-A(4) of the NDPS Act. Section 36-A(4) of the NDPS Act is reproduced as under :“Section 36A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) xxxx (b) xxxx (c) xxxx (d) xxxx (2) xxxx (3) xxxx (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 GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
construed as reference to “one hundred and eighty
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days.” Provided that, if it is not possible to complete the investigation within 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.” (5) xxxx “ Now the question for consideration before this Court is that in case, the application has been moved for extension of time before expiry of 180 days whether the indefeasible right has been accrued to the petitioner to be released on bail under Section 167(2) of the Code. This issue was subject matter of consideration in three Judges' Bench of Hon'ble the Apex Court in case Sayed Mohd. Ahmed Kazmi vs State (Government of NCT of Delhi) and others 2012(12) SCC 1. In that case, the accused filed an application for grant of bail on 02.06.2012 as the period of 90 days was to expire on 03.06.2012. The learned Magistrate, by his order dated 02.06.2012, extended the period of investigation and custody of the appellant was extended for further 90 days. The said order was challenged by the appellant in a revision, which came up for hearing before Additional Sessions Judge, who held that it was only the Session Court and not the Chief Metropolitan Magistrate, who had the competence to extend the judicial custody of the accused and to entertain cases of such nature. The accused was produced before the Chief Judicial Magistrate for extension of his custody. The application was filed by the accused on 17.07.2012 under Section 167(2) of the Code on the ground that the charge sheet had not been filed within 90 days' period of custody, hence, he be granted bail. The said application was dismissed by the Magistrate. Thereafter, the matter GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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was referred to the District and Sessions Judge, who directed that judicial custody of the accused be extended. The said order of Sessions Judge was challenged before this Court under Section 482 of the Code and the impugned order was stayed. This issue was also before this Court in case Hardeep Singh vs State of Punjab passed in Criminal Misc. No.M-17260 of 2014, decided on 29.05.2014 and the bail was declined in similar circumstances by observing that whenever any application under Section 36-A (4) of the NDPS Act was filed by the prosecution agency seeking authorization of detention of an accused in custody beyond the period of 180 days, said application should be decided expeditiously. Similarly, Hon'ble the Apex Court in case Union of India through C.B.I vs Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014(4) RAJ 265 has issued directions that an application under Section 167(2) of the Code filed on behalf of the accused should have been decided by the Magistrate on the same day. The petitioner, in the present case, has claimed that he has acquired an indefeasible right to be released on bail on the ground that the application for bail under Section 167(2) of the Code was moved on expiry of period of 180 days as the statue confers a right upon him to be released after expiry of 180 days. Undoubtedly, the application was moved by the Investigating Agency prior to the expiry of period of 180 days so that the same be decided before releasing the accused on bail with default clause. It was an abundant caution taken by the prosecution agency to prevent the release of accused by way of filing application under Section 36-A(4) of the Act. The said application should have been decided after hearing the petitioner in jail before expiry of period of 180 days. Had the said application been decided by passing a speaking order in accordance with law, the petitioner would not have got an opportunity to seek the advantage GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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of default of the prosecution agency in presentation of challan by moving an application under Section 167(2) Cr.P.C. It has been observed by Hon'ble the Apex Court in case Sastri Yagnapurushadji vs Muldas Brudaradas 1966 AIR 1119 that it is elementary rule of justice that no party should suffer for the mistake of the Court or its office. The prosecution agency has filed an application and availed the statutory remedy under Section 36-A(4) of the Act for extension of time within the prescribed limit i.e prior to expiry of 180 days and it cannot be said that the Investigating Agency was at fault. As such, the petitioner cannot take benefit of irregularity committed by the Court. This Court dismissed the petition in case Kaka Singh vs State of Punjab, Criminal Misc. No.M-22760 of 2014 on 12.08.2014. In that case also, the application for extension of time was moved before the date of expiry of period of 180 days. The observations made by this Court in the said judgment are reproduced as under :“It is also not out of place to observe here that the petitioner is accused of being habitual of selling intoxicating pills to the college going students. The petitioner was found in possession of commercial quantity of salts prohibited under the provisions of the Act. Release of petitioner in the present social scenario spoiling of youth by putting them to drugs is the most heinous crime in the Society. Granting bail to the petitioner for the fault of the Court in delaying the adjudication of application under Section 36 A (4) of the Act does not appeal to the conscious of this Court taking into consideration the principle of law as laid down in
Sastri
Yagnapurushadji
Vs.
Muldas
Brudardas, 1966 AIR 1119 holding that it is elementary rule of justice that no party should suffer for the mistake of the Court or its office. The GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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prosecution agency having filed an application and availed the statutory remedy under Section 36 A
(4) of the Act for extension of time within the prescribed limit i.e. prior to expiry of 180 days, cannot be said to be at fault. The petitioner in view of accused of above said heinous crime cannot be permitted to take the advantage of irregularity committed by the Court.” Similar issue also came up in case Sanjay Kumar Kedia @ Sanjay Kedia vs Intelligence Officer, Narcotic Control Bureau and another 2009(17) SCC 631. In that case, the application for extension was filed before expiry of period of 180 days. The trial Court dismissed the application filed under Section 167(2) Cr.P.C filed by the petitioner and allowed the application under Section 36-A(4) of the NDPS Act. In that case, the period of 180 days expired on 13.04.2014 and the application for bail under Section 167(2) Cr.P.C was filed by the accused on 15.04.2014. Neither the application for extension of time was decided nor the period for presentation of challan was extended and there was no order regarding extension of time of detention of the petitioner in order to issue any formal permission to the prosecution agency to present challan beyond 180 days. A statutory and indefeasible right accrued to the petitioner on 13.04.2014 as per provisions of Section 167(2) Cr.P.C. Legally speaking, there was no order of extension for detention of the petitioner beyond period of 180 days till 03.05.2014. It was held in that judgment that in case, the investigation is not completed within 180 days, the Court is empowered to authorize detention for a period up to one year provided following conditions are specified :i) report of the Public Prosecutor indicating the progress of investigation; GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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ii) specific and compelling reasons for seeking detention of the accused beyond 180 days should be mentioned; and iii)notice should have been issued to the accused. Admittedly, in the present case, the period of 180 days for investigation and presentation of charge sheet had expired and thereafter, the application was moved on the ground that the challan has not been presented and the petitioner is not entitled for bail as per provisions of Section 167(2) Cr.P.C. It is also not disputed that the application was moved by the public prosecutor indicating the progress of investigation and for extension of period on the ground that the investigation could not be completed as the Chemical Examiner's Report was still awaited. The extension of detention of the accused in custody was sought for the specific reason of procuring Chemical Examiner's Report. As per provisions of Section 37(1)(b) of the NDPS Act, no person accused of any offence under Sections 19, 24, 27-A and also for offence involving commercial quantity shall be released on bail unless the public prosecutor has been given an opportunity to oppose the application for such release and when such application has been opposed, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. The Special Court is debarred from releasing the accused on bail on any ground except where the Court comes on prima facie conclusion that the accused is not guilty. It is clear from the said provision that the bail can only be granted where there are reasonable grounds to believe that the accused is not guilty. As per provisions of Section 167(2) read with Section 36-A(4) of the Act, the accused may be granted bail in case the investigation has not been completed within a period of 180 days and in case, the public prosecutor moves an application for extension of time for GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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compelling reasons, the accused will not be entitled for bail. It is necessary for the Court to see as to whether the public prosecutor has submitted justified reasons for extension of period of investigation. The word `Investigation' has been defined under Section 2(h) of the Cr.P.C and it includes all the proceedings for collection of evidence conducted by police official or any other authorized persons on behalf of a Magistrate. Under NDPS Act, when the recovery has been effected, the Investigating Officer sends the sample of recovered substance to the Chemical Examiner for its analysis and report. Only on the basis of such report, it can be verified whether the substance so recovered from the accused is contraband Narcotic drug or not. Accordingly, Chemical Examiner's Report is an important piece of evidence to be collected by the Investigating Officer for the presentation of challan. It has specifically been mentioned in the application for extension of time that the investigation is still incomplete as the Chemical Examiner's Report has not been received. The Investigating Agency cannot be at fault and reasonable/justified ground was there for moving application for extension of time. Learned Judge, Special Court has extended the period of investigation for further 60 days. The trial Court has specifically mentioned in its order that the period has been extended as the application was moved before the date of expiry of period of 180 days. It has also been mentioned in the order that in order to take care of the situation, the time of 60 days was extended to the prosecution to file challan and that period would start from the date of order i.e 19.07.2014 and the challan is to be presented by 18.09.2014. The application moved by the accused-petitioner under Section 167 Cr.P.C was dismissed. In view of the facts as mentioned above, there is no merit in the contentions raised by learned counsel for the petitioner and the present GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
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petition, being devoid of any merit, is hereby dismissed. However, the directions are issued to the Courts dealing with such cases under the Act to decide the application moved under Section 36-A(4) of the Act expeditiously, preferably prior to the expiry of period of 180 days, in case, such application is filed before the expiry of period of 90/180 days as the case may be. It is also expected that the law laid down by Hon'ble the Apex Court in Nirala Yadav's case (supra) directing application under Section 167(2) of the Code should be disposed of by the concerned Magistrate on the same day, shall be complied with. Registry is directed to send the copy of this order to all the District and Sessions Judges.
26.08.2014 gurpreet
GURPREET KAUR 2014.09.01 13:41 I attest to the accuracy and integrity of this document HIgh Court Chandigarh
(DAYA CHAUDHARY) JUDGE