Amen Singh vs State of Punjab

Tejinder Singh Dhindsa, J.—This order shall dispose of the present petition filed u/s 36-A(4) of Narcotic Drugs and Psychotropic Substances Act (for short ''NDPS Act'') read with section 167(2) of the Code of Criminal procedure and Section 482 of the Code of Criminal Procedure seeking the benefit of regular bail to the petitioner in case F.I.R. No. 115 dated 12.7.2013 under Sections 18/61/85 of NDPS Act, registered at Police Station Lehra, District Sangrur.

The petitioner was arrested on 12.7.2013 and as per prosecution version, an alleged recovery of 10 kgs. and 500 gms. of opium was made from him as also his co-accused.

Learned counsel for the parties have been heard at length.

u/s 167 of the Code of Criminal Procedure and under its various sub Sections, the maximum period beyond which a person cannot be detained while investigation is under way, has been provided and the same varies between 60 to 90 days keeping in view the gravity of the offence. If, the investigation is not completed within such stipulated period, the accused is entitled to bail u/s 167(2) of the Code of Criminal Procedure upon making an application for such purpose. However, under the NDPS Act, the maximum period of 90 days fixed u/s 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act. u/s 36-A of the NDPS Act, the period of detention may go on for a total of one year subject to satisfaction and compliance of the stringent conditions provided therein i.e. (i) upon a report of the Public Prosecutor (ii) which in turn indicates the progress of the investigation and (iii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days and (iv) after notice to the accused.

Adverting back to the facts of the present case, since the period of 180 days for completion of investigation was expiring on 7.1.2014, an application dated 2.1.2014 was filed seeking extension of time. The petitioner, on the other hand, moved an application on 14.1.2014 u/s 167(2) of the Code of Criminal Procedure seeking the benefit of bail. The Special Court, Sangrur, vide order dated 9.1.2014, granted three months'' extension to complete the investigation and on the other hand, on 15.1.2014, the application submitted by the petitioner/accused seeking bail u/s 167(2) of the Code of Criminal Procedure has been dismissed as not maintainable on account of the extension having been granted.

In the considered view of this Court, there has been non-compliance of the provisions contained in Section 36-A of the NDPS Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reasons for seeking the detention of the accused beyond a period of 180 days. In the present case, the application preferred by the prosecution and routed through the Additional Public Prosecutor, Sangrur dated 2.1.2014 has been placed on record at Annexure P-9 and the only basis cited therein for seeking extension in investigation is that the samples were sent to the Chemical Examiner and the report of the Chemical Examiner, Kharar is still awaited. A perusal of the order dated 9.1.2014, passed by the Special Court, Sangrur granting extension at Annexure P-10 merely recites that the progress of the case has been mentioned in the application itself filed by the Additional Public Prosecutor. This Court would have no hesitation in observing that the application submitted seeking extension of time for completion of investigation and the orders passed thereupon by the trial Court have been passed in a routine and mechanical fashion.

Learned State counsel would bring to the notice of this Court that the challan in the present case stands presented on 4.4.2014. Be that as it may, the bail application preferred by the petitioner had been instituted much prior thereto i.e. on 14.1.2014. As such, the statutory right that had accrued to the petitioner on the expiry of 180 days from the date he had been taken into custody could not have been defeated by the subsequent submission of the challan. A reference in this regard may be made to the decision of the Hon''ble Supreme Court of India in case of Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Others,

It has also gone uncontroverted that co-accused Nirmal Singh Thekedar has been granted the benefit of regular bail by this Court in the light of order dated 23.5.2014 passed in Crl. Misc. No. M-15015 of 2014.

For the reasons recorded above, the petitioner is held entitled to the benefit of regular bail. Petition, accordingly, is allowed. Petitioner be enlarged on bail subject to satisfaction of the trial Court.

Petition disposed of.