Labhchand Dhakad vs State Of Rajasthan

Learned counsel for the applicant was heard through video conferencing.

The present bail application has been filed under Section 439 Cr.P.C. read with Section 167(2) Cr.P.C. on behalf of the applicant, who is in custody in connection with FIR No. 136/2019, Police Station Fatehnagar for the offence under Section 8/15 of the NDPS Act, 1985.

It is submitted by learned counsel for the applicant that the applicant was arrested on 13.10.2019 and from the date of arrest, a period of 180 days expired on 09.04.2020 but admittedly till then charge-sheet in the matter was not filed by the prosecution.

It is submitted that the applicant applied for bail before the trial court, however, the trial court by its order dated 24.04.2020, referring to the order dated 23.03.2020 passed by Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3/2020, the fact that in the case diary of the SHO, Fatehnagar, a letter dated 09.04.2020 was available seeking extension of time and the fact that the matter involved commercial quantity, rejected the application.

Learned counsel with reference to order of this Court in Pankaj v. State : S.B. Criminal Revision Petition No. 355/2020, decided on 22.05.2020 submitted that the order passed by Hon'ble Supreme Court has no application to the provisions of Section 167(2) Cr.P.C. and as admittedly the challan has not been filed within the period of 180 days as envisaged by Section 36A(4) of the NDPS Act, 1985, the applicant on account of mandatory provisions of Section 167(2) Cr.P.C., is entitled to bail.

Learned Public Prosecutor opposing the bail application made submissions that the challan has now been filed on 04.06.2020 and that in view of the fact that the SHO being aware of the requirement of law had prepared an application under Proviso to Section 36A(4) of the NDPS Act, 1985, which was available in the case diary, the petitioner is not entitled for benefit of Section 167(2) Cr.P.C. and as the matter involves commercial quantity, the bail application deserves to be dismissed. However, on query, it was submitted that the application could not be presented before the Competent Court.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as made available by learned Public Prosecutor alongwith the factual report.

The applicant was allegedly caught with Poppy Straw weighing 1020 kilograms and as such an FIR for offence under Section 8/15 of the NDPS Act, 1985 was registered against the applicant and was under investigation. As the quantity of the contraband recovered was commercial, in view of provisions of Section 36A(4) of the NDPS Act, 1985, the period provided under Section 167(2) Cr.P.C. stood enlarged to 180 days. Admittedly, the said period on account of the fact that the applicant was arrested on 13.10.2019, came to an end on 09.04.2020 and as till then, the charge-sheet had not been filed, the applicant seeking to take benefit of provisions of Section 167(2) Cr.P.C. filed application for bail under Section 439 Cr.P.C.

As noticed hereinbefore, the trial court referring to the order dated 23.03.2020 passed by Hon'ble Supreme Court in light of COVID-19 Pandemic, and a letter dated 09.04.2020 available in the case diary seeking extension of time, declined to grant bail based on provisions of Section 167(2) Cr.P.C. read with Section 36A of the NDPS Act, 1985.

Insofar as the reliance placed by the trial court on order dated 23.03.2020 passed by Hon'ble Surpeme Court is concerned, a coordinate Bench of this Court in the case of Pankaj (supra), wherein also similar plea was raised by the prosecution, while declining the said plea, inter alia, came to the following conclusion:-

"27. Having regard to the background in which the Hon'ble Supreme Court has passed the subject order dated 23.3.2020 and in light of what has been recorded therein, it is clear that the same was passed with a view to give relief to the litigants and lawyers. Hon'ble the Supreme Court has extended the period of limitation for filing petition, appeal, revision etc. - and no such advantage of extension of period has been given to any investigating agency or statutory body.

In absence of any clear stipulation in the above referred order of Hon'ble Supreme Court, in my considered opinion, the investigating or prosecuting agency cannot claim self-serving extension, under the pretence or cloak of such order."

In view thereof, the plea based on the order dated 23.03.2020 passed by Hon'ble Supreme Court, cannot be accepted.

So far as the fact that a letter dated 09.04.2020 was available in the case diary purportedly seeking extension of time is concerned, provisions of Proviso to Section 36A(4) of the NDPS Act, 1985 provides that if it is not possible to complete the investigation within the period of 180 days, the Court may extend the said period upto 1 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 180 days. However, admittedly the said purported application lying in the case diary, was never presented before the Competent Court by the SHO and/or the Public Prosecutor seeking extension of time at any stage.

This is not the case of the State/Prosecution that the Competent Court having jurisdiction was not functioning, where the application could be filed and as such merely because the purported application was lying in the case diary, which application was never presented, the same cannot be relied on for assuming extension of the period as envisaged under Section 167(2) Cr.P.C. read with Proviso to Section 36A(4) of the NDPS Act, 1985.

Having regard to the above facts and circumstances of the case and taking into account the mandatory provisions of Section 167(2) Cr.P.C., when the applicant applied for bail, his detention was beyond 180 days and as the charge-sheet had not been filed, the trial court for the reasons indicated hereinbefore committed error in not invoking the default clause, which is mandatory and not discretionary for enlarging the applicant on bail.

Consequently, the bail application is allowed. It is ordered that the accused-applicant - Labhchand Dhakad S/o Shri Badrilal Dhakad arrested in connection with FIR No. 136/2019, Police Station Fatehnagar, shall be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- (Rupees Fifty Thousand Only) with two sureties of Rs.50,000/- (Rupees Twenty Five Thousand Only) each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.