Pardeep Kumar vs State of Punjab

K.S. Kumaran, J.

Petitioner Pardeep Kumar was arrested on 28.6.1994. He is alleged to have had in his possession 5.20 Kg. of opium and therefore, an FIR was lodged under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985. He was produced before the concerned Magistrate on 29.6.1994 and continues to be in detention. The chargesheet against the petitioner was filed on 7.11.1994.

The petitioner filed an application for bail before the learned Sessions Judge, Faridkot, alleging among others the ground that the chargesheet against him was not filed within 90 days of his arrest and, therefore, he should be released on bail as prescribed in Section 167(2) of the Code of Criminal Procedure. The learned Sessions Judge, relying upon the decision in Rafiq Mohamad v. The State of Punjab, 1994(3) RecentCR 198 , agreed with the contention of the prosecution that even if the chargesheet was not filed within 90 days as prescribed, the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 has no right to be released on bail as the power of the Court to grant bail under Section 439 Cr.P.C. is subject to the restrictions imposed by Sections 37 of the said Act. Therefore, the bail application filed by the petitioner was dismissed by the learned Sessions Judge, on 31.10.1994 (vide annexure P1). The petitioner then filed Cr. Misc. No. 19026M of 1994 before this Court and that application was dismissed by me agreeing with the view of the learned Sessions Judge. Of course, I disposed of that petition on 8.12.1994 observing that the same was being dismissed at that stage.

Now the petitioner has urged in this petition that the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 would be attracted only to a case where the bail application is based upon the facts, that is, the merits of the case and not to a case where it is grounded upon the default of the prosecution to file the chargesheet within 90 days as prescribed under Section 167 of the Code of Criminal Procedure. Learned Counsel appearing for the petitioner also relied upon the decision of the Hon''ble Supreme Court in Union of India v. Thamisharasi and others, 1995(2) Recent Criminal Reports 531 : 1995(4) SCC 190 , in support of his contention. But the learned AAG appearing on behalf of the State contends that in the present case a chargesheet has been filed on 7.11.1994 and, therefore, the petitioner is not entitled to rely upon the decision of the Hon''ble Supreme Court referred to above. He contends that once the charge sheet is filed the petitioner is not entitled to take advantage of the provisions of Section 167(2) and that the powers of this Court are circumscribed by the provisions of Section 37 of Narcotic Drugs and Psychotropic Substances Act. The learned AAG also relied upon the decision of this Court rendered in Vidya v. State of Punjab, 1995(3) RecentCR 593 , wherein reference was made to the decision of Hon''ble Supreme Court in Union of India v. Thamisharasi and others, (supra). After referring to this decision, Dr. Justice Sarojnei Saksena held as follows:

"In the aforesaid authority, the apex Court has decided that section 37 of the Act does not override the provisions of Section 167(2) of the Code of Criminal Procedure. Admittedly, challan has been presented now. The petitioner cannot claim that she be released on bail on default as investigation could not be concluded within 90 days of her arrest. As per this judgment of the Supreme Court, after the presentation of the challan, the provisions of Section 37 of the Act are attracted. Hence the petitioner is required to satisfy the Court that there are reasonable grounds for believing that she is not guilty of such offence and that she is not likely to commit any offence while on bail."

The learned counsel for the petitioner, on the other hand, relied upon the decision of this Court in Bajrang v. State of Haryana, 1995(3) RecentCR 536 , wherein Justice Satpal held that where the challan is put up after 90 days from the date of remand of the accused, and also subsequent to the filing of the application for the grant of bail, the accused cannot be deprived of the concession of bail. That was also a case arising under the Narcotic Drugs and Psychotropic Substances Act, 1995. The learned counsel for the petitioner also relied upon the decision of this Court in Ajit Singh v. State of Punjab, 1994(2) RecentCR 279 . That was a case where the accused was arrested under the Narcotic Drugs & Psychotropic Substances Act and remanded to custody. The charge sheet was presented before the Court after the expiry of 90 days from the date of taking of the accused into custody. It was held that the subsequent presentation of the charge sheet does not defeat the right of the accused to be released on bail. Lord Justice A.P. Choudhari, in delivering this judgment, referred to the decision of Hon''ble Supreme Court in Raghubir Singh v. State of Bihar, 1987 Cr. L.J. 157. The Hon''ble Supreme Court in this case has held that an order of release made under proviso to section 167(2), Cr.P.C. is not defeated by lapse of time, the filing of the charge sheet or by remand to custody under Section 309(2). This decision of the Supreme Court, of course, did not relate to a case arising under the Narcotic Drugs & Psychotropic Substances Act.

On an analysis of these decisions, the present position of law that emerges is as follows:

"(1) Even in a case arising under the Narcotic Drugs & Psychotropic Substances Act, the Court is entitled to release the accused on bail under the proviso to section 167(2), Cr.P.C., if the charge sheet is not filed within 90 days/60 days, as the case may be, from the date of his arrest.

(2) If the accused had filed the application for bail after the expiry of said period of 90/60 days, as the case may be, but before the charge sheet is filed, then also he will be entitled to the grant of bail even if the charge sheet is filed subsequently."

Therefore, there will be no difficulty for an accused to get bail in such circumstances.

But, Hon''ble A.P. Chowdhri, J., in Ajit Singh''s case (supra), has held that mere filing of the charge sheet will not by itself extinguish the rights of the accused to be released on bail under proviso to section 167(2), Cr.P.C., even though it may be open to the prosecution to seek cancellation of bail on appropriate grounds. We have to examine whether the accused will be entitled to bail automatically even in such circumstances, since such a view is contrary to the one taken by Dr. Justice Sarojeini Saksena in Vidya''s case (supra).

Before I take up this question for consideration it is necessary to advert to the contention reased by the petitioner that he is entitled to be released on bail on the basis that he had applied to the court even before the filing of the charge sheet. The learned Asstt. Advocate General contended that this is not a case where the petitioner has come forward with the application for being released on bail before the filing of the charge sheet, though the charge sheet was filed after the expiry of 90 days from the date of arrest. I am of the opinion that on the facto and circumstances of this case, the said contention cannot be accepted. Because, as pointed out by me already, the petitioner had moved the Sessions Court itself for bail on the ground that the charge sheet had not been filed within 90 days and that he is entitled to be released on bail in view of Section 167(2), Cr.P.C. That application was dismissed by the learned sessions Judge on 31.10.1994 holding that the petitioner is not entitled to bail under Section 167(2), Cr.P.C., in view of the provisions of Section 37 of the Narcotic Drugs & Psychotropic Substances Act and the decision in Rafiq Mohd''s case (supra) that a person accused of violating the Narcotic Drugs & Psychotropic Substances Act could be released only on satisfaction of the provisions of Sections 37 of that Act notwithstanding the fact that the charge sheet was not filed within 90/60 days of his arrest. This Court also dismissed the petitioner''s application for bail on 8.12.94 stating that there was no ground to interfere and that the bail application was being dismissed at that stage. The charge sheet was filed on 7.11.94, i.e., only after the petitioner had approached the sessions court for bail on this ground. It is only subsequently that the Hon''ble Supreme Court in Thamisharasi''s case (supra) held on 1.5.1995 that a person arrested for the commission of an offence under the Narcotic Drugs & Psychotropic Substances Act can claim to be released on bail on the expiry of the total period specified in proviso to section 167, Cr.P.C. if the complaint is not filed within that period, and that Section 37 of the Narcotic Drugs & Psychotropic Substances Act applies only when the question arises on merits and not when the grant of bail is automatic on account of default in filing the complaint within the specified period.

Therefore, in these circumstances, it cannot be said that the present petitioner had applied for bail subsequent to the filing of the charge sheet. He had once applied for the grant of bail even before the charge sheet was filed and that was dismissed by the learned Sessions Judge. Trial Court also dismissed his earlier application for bail specifically stating that it was being dismissed at that stage. Therefore, the petitioner must be taken to have applied for being released on bail under Section 167(2), Cr.P.C., before the filing of the charge sheet. Therefore, in view of the law having been laid down by the Supreme Court subsequently in Thamisharasi''s case (supra), the petitioner is now entitled to the concession of bail on the ground that the charge sheet had not been filed within 90 days from the date of the arrest of the petitioner.

Now I will consider the question whether the accused is entitled to the concession of bail even on the basis that he had filed the application for bail on this ground after the filing of the charge sheet. Of course, Dr. Sarojeni Saksena, J., while dealing with Vidya''s case (supra) has held that as per the judgment of the Supreme Court in Thamisharasi''s case (supra), the provisions of Section 37, Narcotic Drugs Psychotropic Substances Act are attracted after the presentation of the challan. With great respect to the learned Judge, I find that the question whether after the filing of the charge sheet, the provisions of Section 37 of the Narcotic Drugs & Psychotropic Substances Act will once again be attracted to the case of the accused seeking bail even though the charge sheet was filed after the expiry of 90/60 days, as the case may be, was not specifically raised before the Supreme Court and, therefore, was not decided by the Supreme Court in Thamisharasi''s case (supra). In fact, in paragraph 4 of the judgment in Thamisharasi''s case, their Lordships of the Supreme Court have made specific observations as follows:

"It is a common ground that legality of the impugned order granting bail is to be decided with reference to its date prior to the filing of the complaint."

Their Lordships of the Supreme Court have also taken note of the fact that the complaint had been filed subsequent to the prescribed period and have observed that it is not material for the decision of the question of law which arose before them. In the case before the Hon''ble Supreme Court, the complaint against the accused was not filed within 90 days of arrest. The accused claimed to be released on bail as of right on the expiry of the said period of 90 days, and they were ordered to be released on bail on that ground alone. The application for cancellation of the bail was rejected by the High Court and, therefore, the appeal was made to the Supreme Court. Their Lordships of the Supreme Court framed the question of law as follows :

"Whether the proviso to subsection (2) of Section 167, Cr.P.C. 1973, can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs & Psychotropic Substances Act, 1985 to claim release on bail on the expiry of a total period specified therein if the complaint is not filed within that period ?"

Therefore, it is clear that the question whether the accused could be released under the provisions of Section 167(2) of the Code of Criminal Procedure, in a case where the accused applied for being released on bail after the charge sheet had been filed subsequent to the period specified in that section did not specifically arise for consideration and, therefore, not decided specifically in Thamisharasi''s case (supra). With respect, I prefer to follow the view taken by Lord Justice A.P. Chowdhari who, in turn, had followed the decisions of the Supreme Court, and I hold that even the subsequent filing of the chargesheet after the period prescribed in the proviso to Section 167(2), Cr.P.C., cannot deprive a person accused of an offence under the Narcotic Drugs and Psychotropic Substances Act to get himself released on bail under the provisions contained in proviso to Section 167(2), Cr.P.C. Even otherwise, in view of what I have discussed above, the petitioner must be deemed to have approached the Court for bail before the charge sheet was filed, even though the earlier application was dismissed.

Therefore, taking into consideration all these aspects and also the peculiar facts and circumstances of the case as noted in paras 7 and 8 above, I am of the view that the petitioner is entitled to be released on bail in view of the provisions of Section 167(2), Cr.P.C. Accordingly, the petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of Chief Judicial Magistrate, Faridkot.