Baljit Singh vs State of Punjab

Surinder Gupta, J.

CRR-1041-2014

The question which arises in this petition is as to whether the petitioner is entitled to statutory bail u/s 167(2) Cr.P.C. even if the challan has been presented after the expiry of the extended period allowed by the Court to file the challan but before the decision of the bail application.

The petitioner has challenged the order dated 28.02.2014 whereby the application filed by the petitioner u/s 167(2) Cr.P.C. was declined.

Briefly stated, the case of the prosecution is that the petitioner was arrested on 27.07.2013 and recovery of 520 grams of intoxicant powder was effected from his possession. On expiry of 180 days to file challan, vide order dated 20.01.2014 prosecution was granted time to file the challan till 25.02.2014. On 22.01.2014 the petitioner moved an application seeking bail u/s 167(2) Cr.P.C. which was kept pending and was taken up on 28.02.2014 on which date the prosecution filed the challan and the application was declined in view of the observation of the Hon''ble Supreme Court in the case of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra, .

I have heard learned counsel for the parties and perused the case file with their assistance.

Learned counsel for the petitioner has argued that the time for filing of the challan was extended up to 25.02.2013. The right to get the bail had accrued to the petitioner on 26.02.2013 as the challan was not filed by then. The late filing of challan on 28.02.2013 cannot defeat the right of the petitioner. He has relied upon the observations of the coordinate Bench of this Court in the case of Mangat Ram @ Manga vs. State of Punjab CRR-2496-2013; Satnam Singh vs. State of Punjab, reported as 2013(2) RCR (Criminal) 356; Raj Singh @ Babbu Vs. State of Punjab, ; Sarabjit Singh @ Sabi Vs. State of Punjab, and Siya Ram vs. State (U.T.), Chandigarh, reported as 2009(1) RCR (Criminal) 58.

The learned State counsel has argued that the right to get bail u/s 167(2) Cr.P.C. did not survive in this case as the prosecution has already filed the challan before the application for bail was taken up in view of the observation of the Hon''ble Supreme Court in the case of Sadhwi Pragyna Singh Thakur (supra).

The factual possession in this case is not disputed. Admittedly, the time for filing of the challan was extended up to 25.02.2013 before the application u/s 167(2) Cr.P.C. was filed on 22.01.2013. The bail application was taken up for decision on 28.02.2013 and before that the prosecution had presented the challan.

Before proceeding further it will be relevant to note the observations of the coordinate Bench of this court in case of Siya Ram (supra) relied upon by learned counsel for the petitioner. In that case the challan had already been presented though after a delay of sixteen days of the statutory period of 180 days. Relying upon the observations of the Hon''ble Supreme Court in the Case of Sanjay Dutt Vs. State through C.B.I., Bombay, and Dinesh Dalmia Vs. C.B.I., the application for bail was declined keeping in view the quantity of contraband recovered from the petitioner. In this case also the challan has since been filed and by applying the ratio of judgment in the aforesaid case the petitioner is not entitled for bail u/s 167(2) Cr.P.C.

The issue with regard to the right of the accused to statutory bail u/s 167(2) Cr.P.C. came up for consideration before the Hon''ble Supreme court in Sadhwi Pragyna Singh Thakur (supra) and the Hon''ble Supreme Court after taking note of the observations in the case of Sanjay Dutt (supra), Uday Mohan (supra) and number of other cases on the point observed as follows:

There is yet another aspect of the matter. The right u/s 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt Vs. State through C.B.I., Bombay, The reasoning is to be found in paras 33 to 49. This principle has been reiterated in the following decisions of this Court:

(1) State of M. P. and Another Vs. Ram Krishna Balothia and Another, Dr. Bipin Shantilal Panchal Vs. State of Gujarat, . It may be mentioned that this judgment was delivered by a Three Judge Bench of this Court. (3) Dinesh Dalmia Vs. C.B.I., Mustaq Ahmed Mohammed Isak and Others Vs. State of Maharashtra,

In the citations referred by learned counsel for the petitioner, the judgments in the case of Sadhwi Pragyna Singh Thakur (supra) was neither considered nor discussed as such the observations made therein are not helpful to the petitioner.

In view of the observations made by the Apex Court in the case of Sadhwi Pragyna Singh Thakur (supra) the petitioner is not entitled to statutory bail even if the chargesheet had been filed after expiry of the extended period for filing of challan but before the application for the bail was decided on merit.

CRM-11448-2014

The petitioner has also sought bail on merits. The plea raised even in this application is also similar to the plea taken in the revision petition. The recovery of the contraband from the petitioner admittedly falls in commercial category and Section 37 NDPS Act bars grant of bail in such circumstances.

No reason is made out to grant bail to the petitioner on merits also.

For reasons mentioned above the application for bail as well as the petition stands dismissed.