Jagmail Singh @ Mukhia vs State of Punjab

Naresh Kumar Sanghi, J.—Prayer in this petition is for grant of regular bail to the petitioner, Jagmail Singh @ Mukhia, son of Hardev Singh, resident of Village Kulrian, Tehsil Budhlada, District Mansa, who has been booked for having committed the offences punishable u/s 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ''the Act''), in a case arising out of FIR No. 91, dated 26.11.2012, registered at Police Station, Bareta, District Mansa. Learned counsel contends that the petitioner was arrested on 26.11.2012 for having in possession 50 bottles each containing 100 ml of Rexcof; the petitioner was sent to judicial custody on 27.11.2012; the investigating agency could not file the charge-sheet (report u/s 173, Cr.P.C.) within the stipulated period of 180 days, as per Section 36-A of the Act, therefore, the petitioner moved an application for grant of bail before the learned Trial Court on 27.5.2013, i.e. after expiry of 181 days and thereafter on 28.5.2013 the Public Prosecutor moved an application before the learned Court below for extension of time to file the charge-sheet and, as such, the right had accrued to the petitioner to seek bail in consonance with the provisions contained in Section 36-A of the Act and Section 167(2) of the Code of Criminal Procedure.

Learned counsel for the State on instructions from SI Makhan Singh of Police Station, Bareta, District Mansa, very fairly concedes that after expiry of 180 days, i.e. on 27.11.2012, the petitioner did file an application for grant of bail on the basis of violation of Section 36-A of the Act and thereafter on 28.5.2013 the Public Prosecutor moved an application for extension of time to complete the investigation and to file the charge-sheet.

I have heard learned counsel for the parties and gone through the material available on record.

For the sake of convenience, Section 36-A of the Act is reproduced as under:-

36A. Offences triable by Special Courts.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers -

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise u/s 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail u/s 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted u/s 36.

(4) In respect of persons accused of an offence punishable u/s 19 or section 24 or section 27A or for offences involving commercial quantity the references in subsection (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.

Concededly, the application for grant of bail was moved by the petitioner after expiry of 181 days of his incarceration in the judicial custody and by that time the charge-sheet had not been presented by the investigating agency. Therefore, a right had accrued to the petitioner to seek bail in the present case. Keeping in view the totality of the facts and circumstances of the case, the prayer for grant of regular bail to the petitioner, Jagmail Singh @ Mukhia, son of Hardev Singh, resident of Village Kulrian, Tehsil Budhlada, District Mansa, is allowed. He is ordered to be released on bail during pendency of the trial of the present case, subject to his furnishing bail bonds to the satisfaction of the learned Trial Court.