Bajrang vs State of Haryana

Sat Pal, J. (Oral)

This petition has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (in short, the Code) for grant of bail in case FIR No. 45 dated 22nd February, 1995, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, P.S. Bhiwani District, Hissar.

Notice of this petition was issued to A.G. Haryana, on 11th May, 1995. During the pendency of this petition, the petitioner also filed Criminal Misc. Application No. 10454 of 1995 seeking permission of the Court to bring on record the affidavit of Mahavir Parshad, who is the real brother of the petitioner. In this affidavit, it has been stated that the petitioner has been in judicial custody since 22nd February, 1995, and the challan has been filed after the expiry of 90 days from the date the remand was granted. This application came up for hearing on 15th June, 1995, and the same was allowed and the affidavit of Mahavir Parshad was directed to be taken on record.

The learned counsel for the State, on instructions from Head Constable Raj Karan, P.S. Siwani, submits that the challan has since been filed on 3rd June, 1995. This fact has not been controverted by the learned counsel for the petitioner.

Mr. Jain, learned counsel appearing on behalf of the petitioner, has drawn my attention to subsection (2) of Section 167 of the Code and has submitted that the trial Court could not authorise the detention of the petitioner in custody beyond the period of 90 days and since the challan has not been filed upto 90 days from the date of the order of remand, the petitioner was entitled to be released on bail. In support of his contention learned counsel placed reliance on two judgments of this Court in the case of Ajit Singh v. State of Punjab, 1994(1) Criminal Court Judgments 344 and Daljit Singh alias Manga Singh v. The State of Punjab, 1994 Criminal Law Times 470 and a judgment rendered by a Division Bench of Madhya Pradesh High Court in the case of Umashankar and others v. State of Madhya Pradesh, 1982 Criminal Law Journal 1186. He also relied upon two judgments of the Supreme Court in Hussainara Khatoon and others v. Home Secretary, State of Bihar, AIR 1979 SC 1377 and Union of India v. Thamisharasi & others, 1995(2) Recent Criminal Reports 531 : JT 1995(4) SC 253.

Mr. Dewan, learned AAG Haryana, however, submits that since the present case has been registered under the NDPS Act, 1985, the provisions of Section 167(2) of the Code are not applicable to the facts of the present case. In support of his contention, learned counsel placed reliance on a judgment of this Court in Mahal Singh v. State of Punjab, 1995(1) Recent Criminal Reports 667.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. Admittedly, in the present case, challan has not been filed within the period prescribed under Section 167(2) of the Code. In terms of the law laid down by the Supreme Court in the case of Aslam Babalal Desai v. State of Maharashtra, AIR 1993 Supreme Court 1, the petitioner has to be released on bail. The only point to be examined is whether the petitioner can be directed to be enlarged on bail as the challan has since been filed during the pendency of this petition. Since the challan has been filed after the notice on the petition was issued to the State, I am of the view that the petitioner cannot be deprived of the concession of bail as he had approached this Court before the challan was filed. The view I have taken finds full support from a Division Bench judgment of Madhya Pradesh High Court in the case of Umashankar (supra) and two judgments of this Court in the case of Ajit Singh and Daljit Singh (supra).

I also do not find any merit in the submission made by the learned AAG, Haryana, contending that the provisions of Section 167(2) of the Code are not applicable to the facts of the present case in view of Section 37 of the NDPS Act, 1985. The law laid down in the case of Mahal Singh (supra) stands overruled in view of the decision of the Supreme Court in the case of Thamisharai and others (supra).

For the reasons recorded hereinabove, I direct that the petitioner will be released on bail on furnishing bail bonds in the sum of Rs. 50,000/ with two sureties in the like amount to the satisfaction of C.J.M. Hissar.

JUDGMENT accordingly.