Jagdish Singh alias Jagdish Kumar alias Disha vs State of Punjab

P.K. Jain, J.—In this petition filed u/s 439 of the Code of Criminal Procedure (hereinafter referred to as the code) the following two questions arise for consideration :

1) Whether Section 37 of the Narocotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) overrides Section 167(2) of the Code and bail cannnot be granted in a case registered under the Act unless conditions contained in clauses (i) and (ii) of Section 37(1)(b) are satisfied ?

2) Can bail granted under the proviso to subsection 2 of Section 167 of the Code for failure to complete investigation within the period prescribed thereunder be cancelled merely on the presentation of the challan (charge-sheet) at any time thereafter?

These questions are to be answered in the backdrop of the following facts:-

On 19-3-1995, the petitioner was arrested by Station House Officer, Police Station Lopoke and 5 Kilograms of opium was recovered from him. A case FIR. No. 34 of 1995, u/s 18 of the Act was registered against him at the said police Station. The prosecutin could not complete the investigation and filed the charge-sheet within the stipulated period of 90 days. Consequently the petitioner was enlarged on bail by order dated 26-6-95 keeping in view the provisions of Section 167(2) of the Code.

After the challan was filed, the prosecution moved an application for cancellation of the bail u/s 437(5) of the Code alleging therein that huge recovery of opium was effected from the accused and he could not be released on bail u/s 167(2) of the Code in view of the provisions of Section 37 of the Act. This plea of the State prevailed with the Additional Sessions Judge, Amritsar and the bail granted to be petitioner was cancelled vide order dated 21 -9-1995. For this view the Additional Session Judge placed reliance inter-alias upon a judgment of the apex Court rendered in Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, .

Shri D.S. Pheruman, Advocate, learned counsel for the petitioner has argued that Section 37 of the Act is not applicable unless bail is sought on the merits of a particular case. It has been urged by the learned counsel that when bail is sought on account of default of the prosecution agency in completing the investigation and filing a charge sheet within the prescribed time, the accused becomes entitled to bail on account of mandate of the law and the same cannot be cancelled merely on the ground that subsequent thereto a charge sheet has been filed and there is huge recovery of narcotic from the possession of the accused. Reliance for this contention has been placed upon a well known decision of the Supreme Court rendered in Aslam Babalal Desai Vs. State of Maharashtra,

On the other hand learned State counsel has contended that the provisions of Section 37 override the provision of Section 167(2) of the Code and bail cannot be granted to an accused unless the conditions contained in Section 37 of the Act are satisfied. It is further contended that even if the bail is granted on account of the default of the prosecution the same can be cancelled and the accused can be taken back into custody by the Court after the default is removed and a challan is presented before the Court.

The first question referred to above has been authoriatively answered by their Lordship of the Supreme Court in Union of India (UOI) Vs. Thamisharasi and Others, as follows :- (at.pp. 2548-49 of AIR SCW

"The limitation on granting of bail specified in clause (b) of Sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of Sub-section (2) of Section 167 Cr.P.C. The only fact material to attract the proviso to Sub-section(2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint arc not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(1) (b) of the N.D.P.S. Act. In our opinion, such a construction of clause (b) of Sub-section (1) Section 37 is not permissible."

It becomes clear that the power to grant bail on account of mandate of law contained in the proviso to Sub-section (2) of Section 167 of the Code is not subject to the restrictions contained in Section 37 of the Act. The judgments referred to by the Additional Sessions Judge in his order while cancelling the bail have been impliedly overruled by the pronouncement of the apex Court in the aforesaid case.

The second question has also been replied by the Supreme Court in Aslam Babalal Desai Vs. State of Maharashtra, . After perusing the various provisions of the Code and reviewing the case law on the subject, their Lordships laid down the following law :( Para. 14)

"The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons''s liberty has been interfered with by the police arresting him without a Court''s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso(a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of lime for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that i fit fails to snow asence of urgency in the investigation of the case and omits or defaults .0 file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect u/s 167(2) would be an order u/s 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to Cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted u/s 437(1) or (2) or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso(a) to Section 167(2) of the Code then recedes in the back-ground. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail u/s 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, to the extent it is inconsistent herewith does not, with respect, state the law correctly."

In the case in hand, the petitioner was enlarged on bail vide order dated 26-6-95 on account of the default of the prosecution to complete the investigation and present the challan within the prescribed period of 90 days. Additional Session Judge has cancelled the bail by order dated 29-9-1995 by observing that the provisions of Section 167(2) of the Code are also subject to the conditions contained in Section 37 of the Act, and that huge recovery of opium has been effected from the petitioner. Both these reasons given by the Additional Session Judge for cancellation of the bail are erroneous in view of the decisions of the apex Court cited above.

Consequently, the petitioner is directed to be released on bail on his furnishing a bail bond in the sum of Rs. 10.000/- with one surety in the like amount to the satisfaction of Chief Judicial Magistrate Amritsar.