Malkiat Singh vs State of Punjab

T.P.S. Mann, J.—The present petition has been filed by the petitioner u/s 167(2) read with Section 439 of the Code of Criminal Procedure for the grant of regular bail during the pendency of the trial of the case arising out of FIR No. 33 dated 10.3.2013 u/s 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'') registered at Police Station Ahmedgarh, District Sangrur.

The aforementioned FIR was registered on the basis of ruqa drafted by ASI Gurmej Singh. He mentioned therein that on 10.3.2013 he, alongwith ASI Gorakh Nath, HC Amrik Singh and PHG Shingara Singh, was present in connection with Nakabandi at T-point Jandali Khurd. At about 8.45 a.m. a scooter bearing registration No. PB-28C-1430 came from the side of Jagera bridge and was being driven by a Sikh person. ASI Gurmej Singh gave a signal to the scooterist to stop. However, the scooterist abruptly tried to escape with the scooter in the direction from which he was coming. ASI Gurmej Singh alongwith his fellow officials overpowered him and asked about his name and address. He replied that he was Malkiat Singh son of Chand Singh caste Tailor and resident of Kaheru, Police Station Dhuri. He had kept a bag of black colour and having side pockets of blue colour on his scooter. ASI Gurmej Singh introduced himself to the scooterist and stated about suspicion against him of carrying some intoxicant in the bag carried on his scooter and, therefore, his person, the scooter and the black bag were required to be searched. He further informed the scooterist that he had a legal right to get himself, his scooter and the black bag searched in the presence of a Gazetted Officer or a Magistrate who could be called at the spot. After pondering over the matter for some time, the scooterist replied that he had trust upon ASI Gurmej Singh, who could effect his search as well as that of his scooter and the black bag. Requisite consent memo. was prepared which was signed by the scooterist. On search of the black bag, 335 packets of Phenotil, each containing 100 tablets, 285 packets of Parvon spas, each containing 10 capsules, 18 packets of Carisoma, each containing 10 tablets and 14 vials of Rexcof, each containing 100 mls. were recovered. Requisite samples were drawn and duly sealed. As the petitioner did not have any licence to keep in his possession various intoxicating tablets, capsules and liquid, he was found to have committed the offence u/s 22 of the Act. The petitioner was arrested.

In terms of Section 167(2) Cr.P.C. read with section 36A(1)(b) of the Act, the prosecution was required to present the challan within 180 days of the production of the petitioner before the Illaqa Magistrate i.e. on or before 9.9.2013. However, as the report of the Chemical Examiner in regard to the samples was awaited, Additional Public Prosecutor filed an application dated 2.9.2013 (Annexure P-2) u/s 36A(4) of the Act for extension of time for presenting the challan. Upon notice, the petitioner filed his reply dated 11.9.2013 (Annexure P-3). On 9.9.2013, the petitioner also filed an application for his release on bail on the ground that the challan had not been presented despite the expiry of stipulated period of 180 days for presenting the same. Vide order dated 11.9.2013 (Annexure P-5), learned Judge, Special Court, Sangrur allowed the application filed by the prosecution u/s 36A(4) of the Act by granting two months'' time to present the challan. At the same time, the application filed by the petitioner u/s 167(2) Cr.P.C. was dismissed. Hence, the present petition.

Learned counsel for the petitioner has submitted that as the prosecution had failed to present the challan within the stipulated period of 180 days, the petitioner was entitled to be released on bail in view of the provisions contained in Section 167(2) Cr.P.C. read with Section 36A(1)(b) of the Act. Further, the right of the petitioner to be released on bail on account of default on the part of the prosecution in presenting the challan within the stipulated period could not be taken away by filing the application dated 2.9.2013 (Annexure P-2) as no reasons were mentioned therein as to why the challan could not be presented in time. Further, no notice of the said application was issued to the petitioner. Therefore, the right of bail as enshrined u/s 167(2) Cr.P.C. could not be defeated by subsequent presentation of the challan. In this regard, he has placed reliance upon the judgment of the Hon''ble Supreme Court in the case of Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau and Another, and unreported judgments of this Court in Nardev Inder Singh Vs. State of Punjab CRM M-3339 of 2014 decided on 4.2.2014, Shinder Kaur Vs. State of Punjab CRM M-40440 of 2013 decided on 8.1.2014 and Gurpreet Singh Vs. State of Punjab CRM M-38972 of 2013 decided on 13.12.2013. Prayer has, accordingly, been made for the release of the petitioner on bail during the trial of the case.

Having heard learned counsel for the parties and going through the record of the applications filed by the prosecution u/s 36A of the Act as well as by the petitioner u/s 167(2) Cr.P.C. which was summoned vide order dated 10.2.2014, this Court finds that the petitioner was arrested on 10.3.2013. As per the report of the Criminal Ahlmad, the petitioner was remanded in judicial custody on 12.3.2013. When calculated from 12.3.2013, the period of 180 days for presenting the challan expired on 7.9.2013. However, on 2.9.2013, the prosecution submitted application u/s 36A(4) of the Act for extension of time for concluding the investigation of the case and presentation of the challan. The said application was taken up by the trial Court on 2.9.2013 and the petitioner was asked to file his reply on the next date i.e. 9.9.2013. Reply was filed by the petitioner on 11.9.2013. In the meantime, the petitioner also filed an application u/s 167(2) Cr.P.C. for grant of bail on 9.9.2013. Both the applications i.e. one filed by the prosecution u/s 36A(4) of the Act and the other by the petitioner u/s 167(2) Cr.P.C. came to be decided by the trial Court on 11.9.2013. Vide that order, the prosecution was granted extension of time for two months to present the challan whereas prayer made by the petitioner for grant of bail was dismissed.

A perusal of the application filed by the prosecution u/s 36A(4) of the Act makes it clear that the reasons for not presenting the challan within the stipulated period of time were clearly stated therein. It was mentioned that the sample was deposited with the Chemical Examiner on 13.3.2013 and the reminders were issued on 18.6.2013 and 26.8.2013 but despite the same, the report of the Chemical examiner was still awaited. Without receiving the report of the Chemical Examiner, it was not possible to put up the challan before the Court for proper adjudication of the case. The Additional Public Prosecutor also reported that the Investigating Officer had done his best to receive the report of the Chemical Examiner but the same was still awaited though the investigation was complete. Alongwith the application dated 2.9.2013, the written request made by the SHO for seeking extension of time for presenting the challan was appended and so also the copies of the reminders issued on 18.6.2013 and 26.8.2013 by the Senior Superintendent of Police, Sangrur to the Laboratory for sending the necessary report at the earliest. Further, in the application u/s 36A(4) of the Act, the Additional Public Prosecutor expressed satisfaction that the Investigating Officer had made every possible effort to obtain the report of the Chemical Examiner but the same was beyond his control. It was for that reason that the challan could not be presented within the stipulated period of time. In case the extension prayed for was not granted, the prosecution would suffer irreparable loss. Therefore, it cannot be said that the trial Court erred in allowing the application filed by the prosecution u/s 36A(4) of the Act and also in dismissing the application filed by the petitioner u/s 167(2) Cr.P.C.

There is no dispute with regard to the law laid down in the various judgments cited by the counsel for the petitioner. The requirements of law have been fully complied with by the prosecution in the present case. In its application, the Additional Public Prosecutor had indicated the progress of the investigation and also mentioned the specific and compelling reasons for seeking the detention of the petitioner beyond the period of 180 days. The necessary application filed by the Additional Public Prosecutor was heard after notice to the petitioner, who filed his reply and subsequently the counsel representing him argued on his behalf by opposing the application filed by the Additional Public Prosecutor.

It is not in dispute that after the extension of time by the trial Court vide order dated 11.9.2013 (Annexure P-5), the prosecution has already presented the challan. It has cited fifteen witnesses in support of its case. Out of them, three had already been examined upto 5.5.2014 when the arguments on the present petition were heard and the judgment was reserved. The next date fixed before the trial Court was 21.5.2014 for recording of prosecution evidence.

In view of the above, there is no merit in the petition which is, accordingly, dismissed.