Mahipal Singh vs State of Uttarakhand

Tarun Agarwala, J.—Heard Mr. Sudhir Kumar, the learned Counsel assisted by Mr. J.S. Virk, the learned Counsel for the applicant and Shri T.C. Agarwal, the learned Addl. G.A. for the State.

The applicant was arrested for being in possession of more than 1 kg. of smack which is a contraband item under the N.D.P.S. Act. The arrest was made on 9th July, 2010 and, since then, more than 300 days have elapsed and is still languishing in jail. The charge sheet has not as yet been filed. Under Sub-section (2) of Section 167 of the Code of Criminal Procedure, the detention can be for a time period of 90 days and thereafter the accused person shall be released on bail. This 90 days has been extended to 180 days in view of Sub-section (4) of Section 36A of the N.D.P.S. Act which provides the detention upto 180 days. For facility, Sub-section (4) and the proviso thereto of Section 36A of N.D.P.S. Act is extracted hereunder:

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 Sub-section (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.

The proviso further indicates that the period of 180 days can be extended to one year provided the report of the pubic prosecutor indicates the progress of the investigation and the specific reasons for detention of the accused beyond the period of 180 days. This provision is apparently clear and explicit and requires no clarification.

In the light of the aforesaid, the applicant applied for bail upon the expiry of 180 days which was rejected by the impugned order by the trial court. The counter affidavit of the State reveals that on 3rd January, 2011, the Investigating Officer had applied for extension of the applicant''s detention on the ground that the chemical analysis report of the contraband goods seized from the possession of the applicant was awaited from the laboratory at Chandigarh.

Upon hearing the learned Counsel for the parties, the Court is of the opinion that the application of the Investigating Officer is by itself not sufficient to extend the detention of the applicant. There has to be a report of the public prosecutor indicating not only the progress of the investigation but also indicating the reasons for keeping the applicant under detention beyond 180 days. There is no such report of the public prosecutor nor any reasons have been indicated. Further the application of the Investigating Officer, if that has to be considered, also does not indicate the reasons to keep the applicant under detention beyond 180 days.

In the light of the aforesaid, coupled with the fact that till date the chemical analysis report has not been received and the charge sheet having not been filed and no other investigation is being made, the Court is of the opinion that the applicant deserves to be enlarged on bail on account of the laxity of the State Govt.

Let the applicant be enlarged on bail in F.I.R. No. 216 of 2010, u/s 8/22 of N.D.P.S. Act, on his depositing a sum of Rs. 25,000/- and furnishing two sureties each of the like amount to the satisfaction of Special Judge, N.D.P.S. Act.