Ramesh Goutam vs State of Chhattisgarh

Manindra Mohan Shrivastava, J.—This petition is directed against the order dated 2-7-2010 passed by learned Second Additional Sessions Judge, in Special Case No. 11/2010, whereby Petitioner''s application u/s 167(2) of the Code of Criminal Procedure has been rejected.

Relevant and brief facts for decision of the case are that the applicant was arrested for alleged commission of offence u/s 20(b) of NDPS Act on 24-4-2010 and produced before the Special Judge on 25-4-2010. As the investigation was not completed within 60 days nor charge-sheet was filed, Petitioner moved an application u/s 167(2) of the Code of Criminal Procedure for release on bail on 25-6-2010. Vide order dated 2-7-2010, learned Court below has rejected the application.

Submission of learned Counsel for the applicant is that the offence in respect of which investigation is being made and in connection with which applicant has been arrested, is one specified u/s 20(b)(ii)(b) for which imprisonment may extend to 10 years and fine of Rs. 1,00,000/- as the quantity seized is only 10 kg. and 400 gm. which is more than small quantity and less than common quantity as prescribed under the law. It is argued that in such a case, investigation is required to be completed within 60 days and in case investigation is not completed the charge-sheet is not filed, accused is entitled to be released. He submits that the aforesaid legal position is applicable in the present case of the applicant as the punishment could be less than 10 years and the offence is not punishable without death or life imprisonment. According to the learned Counsel for the applicant in the present case provision of Section 167(2)(a)(i) is not attracted but provisions contained in Section 167(2)(a)(ii) would be applicable. Learned Counsel for the applicant relies upon the judgment in the case of Annu @ Anil Vs. State of M.P., .

On the other hand, submission of learned Counsel for the non-applicant is that in the present case, judgment of Supreme Court in the case of Bhupinder Singh and Others Vs. Jarnail Singh and Another, , is applicable. He submits that, that was a case relating to commission of offence u/s 304B, IPC and punishable with imprisonment for a term of not less than 7 years and can extend to imprisonment of life. He submits that the decision of the Supreme Court in Rajeev Chaudhary Vs. State (N.C.T.) of Delhi, , was referred to and the Supreme Court held that the provisions contained in Section 167(2)(a)(i) of Code of Criminal Procedure will apply. It is argued that the learned Court below has properly considered the legal position in this regard relying upon the decision in the case of Bhupinder Singh (supra). Further submission of learned Counsel for the State is that in any case, charge-sheet was filed on 24-6-2010, therefore, now the Petitioner is not entitled to be released on bail.

In the case of Lalmen Gupta Vs. State of Chhattisgarh, , decided on 3-9-2010, this Court considered the scope and extend of provision contained in Section 167, Code of Criminal Procedure. It has been held that the provisions contained in Section 167(2)(a)(i) will apply only in a case where the investigation is being held in connection with an offence, which is punishable with death, imprisonment of life or imprisonment for a term of not less than 10 years. It has also been held that where the offence is punishable with imprisonment, it may extend upto 10 years, it will not covered by Section 167(2)(a)(i) but Section 167(2)(a)(ii) and the person would be entitled to be released if the investigation is not completed and charge-sheet is not filed within a period of 60 days.

Relying upon the judgment of the Supreme Court in the case of Rajeev Chaudhary (supra), as also the judgment of this Court in the case of Faruk Khan v. State of Chhattisgarh 2004(4) M.P.H.T. 37 : 2005 (1) BLJ 167 and judgment of other High Courts, it was held thus:

(6) A bare reading of relevant provision contained u/s 167(2)(a) would show that no Magistrate shall authorize the detention of the accused person in the custody of the police for a period exceeding 90 days, in cases of offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In other cases, where investigation relates to any other offence, said limitation of 90 days is not applicable and in such cases, detention could not be authorized for a period exceeding 60 days, where no charge-sheet has been filed u/s 167(2)(a)(ii) of the Code of Criminal Procedure, therefore, offence referred to is one which is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In case of other offence including those which are punishable with imprisonment for a term which may extend up to ten years, imprisonment for such offence could be even less than ten years, provision of 90 days is not applicable but the provision of 60 days would be applicable.

(7) In the case of Rajeev Chaudhary (supra), the Supreme Court examined the legal position with reference to provision contained in Section 167 of the Code of Criminal Procedure and held thus:

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Hence, in case, where offence is punishable with imprisonment for ten years or more, accused could be detained up to a period of ninety days. In this context, the expression "not less than" would mean imprisonment should be ten years or more and would cover only those offences for which punishment could be imprisonment for a clear period of ten years or more. u/s 386, punishment provided is imprisonment of either description for a term which may extend to ten years and also fine. That means, imprisonment can be for a clear period of ten years or less. Hence, it could not be said that minimum sentence would be ten years or more. Further, in context also, if we consider Clause (i) of Proviso (a) to Section 167(2) it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than ten years. u/s 386 of the Indian Penal Code imprisonment can vary from minimum to maximum of ten years and it can not be said that imprisonment prescribed is not less than ten years.

(8) Following the aforesaid ratio of the Supreme Court in the case of Rajeev Chaudhary (supra), this Court in the case of Faruk Khan (supra), also held that the prescription of 90 days would be applicable in respect of those offences which are punishable with imprisonment for a term "not less than 10 years" and in case of other offences, where the punishment is one which may extend up to 10 years, meaning thereby that it could be for a period of 10 years or less, Section 167(2)(a)(i) will not apply. Similar is the view of the High Court of Madhya Pradesh in the case of Ram Dayal Gupta (supra), which is a case relating to offence u/s 306, IPC, followed by judgment in the case of Sundar (supra).

In the case of Annu @ Anil (supra), the High Court of M.P. considering a case wherein investigation was in connection with offence punishable in same provisions of the NDPS Act as in the present case held that as the offence punishable with an imprisonment which may extend to 10 years and it is not a case of "not less than 10 years", provisions of Section 167(2)(a)(ii) of Code of Criminal Procedure would be applicable.

The learned Court below in coming to the conclusion that in the present case offence concerned is punishable with imprisonment which may extend upto 10 years, provisions on Section 167(2)(a)(i) will apply, has placed reliance upon the decision of the Supreme Court in the case of Bhupinder Singh (supra). In that case, the Supreme Court was dealing with the case relating to alleged commission of offence u/s 304B, IPC, which is punishable with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. The ratio laid down in the judgment of the Supreme Court in the case of Rajiv Chaudhary (supra), was held inapplicable as the offence u/s 304B, IPC is punishable with imprisonment for a period of not less than 7 years and which can extend to imprisonment for life. Thus, that was a case of offence punishable with imprisonment for life. In the present case, however, the offence is punishable with imprisonment which may extend up to 10 years and with fine. It is neither an offence punishable with imprisonment of not less than 10 years nor imprisonment for life. The judgment of the Supreme Court in the case of Bhupinder Singh (supra), is therefore, clearly distinguishable and not applicable to the facts of the present case.

In the considered opinion of this Court, the ratio laid down in the judgment of the Supreme Court in the case of Rajiv Chaudhary (supra). would be squarely applicable in the present case. Consequently, in the present case, the provisions of Section 167(2)(a)(i) is not applicable but Section 167(2)(a)(ii) of Code of Criminal Procedure would be applicable.

The other question which requires consideration is whether the applicant is entitled to be released if on the date before his release the charge-sheet was filed on 24-6-10. From the order impugned, it is revealed that the applicant was arrested on 24-4-2010 and the charge-sheet has been filed on 24-6-10, the date on which the application for release was filed. It is clear that the investigation could not be completed nor charge-sheet was filed within 60 days. In view of the provisions contained in Section 167(2)(a) of the Code of Criminal Procedure that no Magistrate shall authorize the detention of the accused person in custody for a total period exceeding 90 days or 60 days as the case may be and that the expiry of the said period of 90 days or 60 days, the accused shall be released on bail, an indefeasible right accrued in favour of the applicant which could not be taken away on the ground that though belatedly charge-sheet was filed before, the applicant could be released on bail as held by the Supreme Court in the case of Uday Mohanlal Acharya Vs. State of Maharashtra, .

In the final conclusion, the order of learned Court below is found unsustainable in law and, therefore, set aside. The application of the applicant for his release on bail is allowed. The applicant shall be released on bail on his furnishing a personal bond of Rs. 5,000/- along with one surety for the like amount to the satisfaction of the Trial Court for his appearance before the concerned Court on such dates as may be directed.

Certified copy as per rules.