Jatinder Pal Singh vs State of Punjab

Tejinder Singh Dhindsa, J.—The instant petition has been filed u/s 482 of the Code of Criminal Procedure seeking quashing of the order dated 25.4.2013 passed by the trial Court whereby an application preferred by the petitioner seeking bail u/s 167(2) of the Code of Criminal Procedure pending trial in case FIR No. 99 dated 17.9.2012, under Sections 21/22/61/85 of Narcotic Drugs and Psychotropic Substances Act (for short ''the Act''), registered at Police Station Ghoman, District Gurdaspur, has been dismissed.

Learned counsel for the parties have been heard at length.

Brief facts that would require notice are that the petitioner was arrested on 17.9.2012 and an alleged recovery of 1000 grams intoxicant powder was effected from him.

u/s 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 36A 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 v. State of Maharashtra, 1994(3) RCR (Criminal) 156 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 36A 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, since the challan had not been presented within a period of 180 days from the date of arrest, the petitioner moved an application u/s 167(2) of the Code of Criminal Procedure for bail on 18.4.2013. On the other hand, the investigating agency moved an application dated 24.4.2013 u/s 36A of the Act seeking extension of time for presentation of the challan. On the same very date i.e. 24.4.2013, the trial Court allowed the application seeking extension of time and granted two months'' extension for submission of challan. Thereafter, vide impugned order dated 25.4.2013, the trial Court has dismissed the application preferred by the petitioner u/s 167(2) of the Code of Criminal Procedure on the basis that extension of time for presentation of challan had already been granted.

In the considered view of this Court, there has been non-compliance of the provisions contained in Section 36A of the 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, the trial Court has granted extension of time by merely noticing that report of the Chemical Examiner has just been received and as such, the investigating agency would need some time to prepare and present the challan. The impugned order has been passed in a routine and mechanical fashion.

In the circumstances of the case, the right that had accrued to the petitioner u/s 167(2) of the Code of Criminal Procedure could not have been defeated. A reference in this regard may be made to the decision of the Hon''ble Supreme Court of India in Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Others,

For the reasons recorded above, the present petition is allowed. The impugned order dated 25.4.2013, Annexure P3, passed by the trial Court is set aside The petitioner is held entitled to the benefit of regular bail u/s 167(2) of the Code of Criminal Procedure.

The petitioner be enlarged on bail subject to the satisfaction of the trial Court.

Disposed of.