Gaurav Verma @ Sunny vs State of Punjab

Tejinder Singh Dhindsa, J.

CRM No. 16948 of 2014

Application is allowed as prayed for.

Annexure P-3 is taken on record.

CRM No. M-12629 of 2014

This order shall dispose of the present petition filed u/s 167(2) Cr.P.C. praying for the grant of regular bail to the petitioner in case F.I.R. No. 245 dated 22.9.2013 under sections 22/61/85 of N.D.P.S. Act, registered at Police Station, Gobindgarh Mandi, District Fatehgarh Sahib.

The petitioner was arrested on 22.9.2013 and as per prosecution version an alleged recovery of 15 pouches containing 100 tablets each 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(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 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 the 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 dated 20.3.2014 seeking extension of time was preferred by the investigating agency. Vide order dated 27.3.2014.

(Annexure P-3), the Special Judge, Fatehgarh Sahib allowed the application and granted the extension of time of 60 days for filing the final report/challan.

The petitioner admittedly had filed a bail application u/s 167(2) Cr.P.C. before the Trial Court on 24.3.2014 i.e. prior to the grant of extension granted by the Trial Court.

Such application seeking benefit of bail u/s 167(2) Cr.P.C. has been declined by the Trial Court on the ground that extension of 60 days time for completion of investigation already stands granted.

In the considered view of this Court, there has been non-compliance of the provisions contained in Section 36-A of the N.D.P.S. 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 a perusal of the order dated 27.3.2014 (Annexure P-3), passed by the Trial Court granting 60 days extension of time would reveal that the only ground that was taken by the investigating agency and had weighed with the Trial Court was that the report of the Forensic Science Laboratory had not yet been received. 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 done in a routine and mechanical fashion.

For the reasons recorded above, the present petitioner is entitled to the benefit of regular bail. Petition, accordingly, is allowed.

Petitioner be enlarged on bail subject to satisfaction of the Trial Court/Duty Magistrate.

Petition disposed of.