Beant Singh vs State of Punjab

Tejinder Singh Dhindsa, J.—This order shall dispose of the present petition filed u/s 439 Cr.P.C. read with Section 167(2) Cr.P.C. praying for the grant of bail to the petitioner in case F.I.R. No. 146 dated 16.8.2013 under sections 21, 61, 85 of N.D.P.S. Act, registered at Police Station, Kurali, District S.A.S. Nagar.

The petitioner was arrested on 16.8.2013 and as per prosecution an alleged recovery of 2 gms of smack and 1500 tablets of phinotil was effected from him.

Learned counsel for the parties have been heard at length.

Under Section 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 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 if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed u/s 167 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 Act, the period of detention may go on to 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; (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.

The Hon''ble Supreme Court in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, while dealing with the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA which is pari materia with the proviso to sub-Section (4) of Section 36-A of the Act had categorically held that even though the proviso does not specifically mandate the issuance of a notice to the accused while seeking extension yet the issuance of a notice has to be read into the provision which would be, both, in the interest of the accused, as also the prosecution as well as for doing complete justice between the parties. Such requirement was held to be in consonance with the principles of natural justice.

Adverting back to the facts of the present case, it has gone undisputed that since investigation in the matter had not been completed and the maximum period of 180 days was expiring, an application u/s 36-A of the N.D.P.S. Act was preferred by the investigating agency on 6.2.2014. The Trial Court allowed such application seeking extension of time on the same very day i.e. 6.2.2014 and granted an extension of 90 days for presentation of challan.

Admittedly the petitioner moved an application u/s 167(2) Cr.P.C. seeking bail on 6.3.2014 but the same has been declined vide order dated 11.3.2014 (Annexure P-3) by the Trial Court holding the same to be not maintainable as extension for presentation of challan had already been granted.

This Court is of the considered view that there has been non-compliance of the provisions contained u/s 36-A of the Act.

Learned State counsel upon instructions from H.C. Surender Singh would concede that no notice had been given to the accused of the application moved by the prosecution seeking extension of time u/s 36-A of the N.D.P.S. Act. Even such application seeking extension was not accompanied by the report of the Public Prosecutor. The Trial Court has passed the order granting extension of time in a routine and mechanical fashion by merely stating that the report of the Chemical Examiner had not been received. It further stands conceded that the challan had not even been presented till date.

Under such circumstances, the petitioner is held entitled to the benefit of regular bail. Present petition is allowed. Petitioner be enlarged on bail subject to satisfaction of the Trial Court/Duty Magistrate.

Petition disposed of.