Pargat Singh vs State of Punjab

Dr. Sarojnei Saksena J.

Petitioner''s counsel contends that as challan was not filed within a statutory period, the petitioner was enlarged on bail by the trial Court on default under Section 167(2) of the Cr.P.C. on 13.7.1994. Later on after 90 days of the arrest of the petitioner, challan was filed in the Court on 1.8.1994, while petitioner was arrested on 10.4.1994. Thereafter, prosecution filed an application that bail granted to the petitioner be cancelled. The Additional Sessions Judge, Ropar allowed this application by the impugned order and cancelled that bail granted to the petitioner. Hence, it is prayed that he be released on bail under section 439 Cr.P.C. and the impugned order of the learned Additional Sessions Judge, Ropar be set aside under Section 482 Cr.P.C. petitioner''s counsel relying on Aslam Babalal Desai v. State Of Maharashtra, 1993(1) Recent Criminal Reports 600 strongly stressed that once bail has been granted to the accused on default under section 167(2) of the Code, after presentation of the challan, bail cannot be cancelled. According to him, the learned Additional Sessions Judge, Ropar fell into an error in following Supreme Court''s decision given in Rajnikant Jivan Lal Patel''s case (AIR 1990 S.C. 71) which is further considered in Aslam Babalal Desai''s case (supra) by a Full Bench of the Supreme Court, wherein it is further directed that a compulsive bail order made by a Court under Section 167(2) of the Code being one not on merit, when required to be cancelled after the filing of the challan would not involve any review of a decision made on merit. Such bail is cancelled if the Court has reason to entertain the belief that the accused has committed a nonbailable offence and that it is necessary to arrest him and commit him to custody.

Respondent''s learned counsel relying on Ram Dayal v. Central Narcotic Bureau, 1993(2) Criminal Law Journal 1443 and Chander Sain v. State of Haryana, 1995(1) Recent Criminal Reports 113 strongly opposed both the prayers and contended that the lower Court had wrongly granted bail to the petitioner on default under Section 167(2) of the Cr.P.C. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 overrides the provisions of Section 167(2) of the Cr.P.C. The lower Court did not consider the merits of the case while bail was granted to the petitioner. Admittedly, after the expiry of 90 days of the arrest of the petitioner, challan was presented under Section 18 of the said Act. The accused and other coaccused persons were found carrying 50 bags of poppy husk in truck No. DIG 7027 and each bag contained 40 kilograms of poppy husk. Two samples were taken out of each of these bags. They were sent for analysis and the Chemical Examiner found them to be that of poppy husk. This offence is punishable with 10 years imprisonment with a fine of Rs. One Lac. The petitioner is involved in heavy recovery of poppy husk and there is no material on record to say that he will not indulge in such activities again.

In Ram Dayal''s case (supra) and then Chander Sain''s case (supra), provisions of Section 37 of the N.D.P.S. Act are considered visavis the provisions of Section 167(2) Cr.P.C. and it is held by a Full Bench of Madhya Pradesh High Court in Ram Dayal''s case (supra) that the provisions of Section 37 of the Act override the provisions of Section 167(2) Cr.P.C. This authority is followed by a single Bench of Punjab and Haryana High Court in Chander Sain''s case (supra). Admittedly, in this case, petitioner was enlarged on bail on default under Section 167(2) of the Cr.P.C. at that time challan was not presented and provisions of Section 37 of the said Act were not/and could not have been considered. Later on, challan was filed. The petitioner and coaccused were found in possession of 50 bags of poppy husk. Each bag contained 40 kilograms of poppy husk. This contraband was being transported in truck No. DIG 7027. Thus, it is apparent that the petitioner is involved in a serious, case of transporting large quantity of poppy husk and further there is no material or record to say that he will not indulge in such activities again. Thus, under these circumstances, considering the provisions of Section 37 of the said Act, the learned Additional Sessions Judge Ropar has passed the impugned order and has cancelled the bail granted to the petitioner on default under Section 167(2) of Cr.P.C. The said order is neither illegal nor suffers from any infirmity.

On the above reasoning, the petition is hereby dismissed.