Ranbir Singh vs State of H.P.

M.R. Verma, J.—This is a petition u/s 439 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') by the Petitoner-accused (hereafter referred to as ''the accused'') for grant of bail on the ground that the prosecution has failed to put up the charge sheet against the accused within a period of 90 days, therefore, he is entitled to be released on bail.

Case of the prosecution against the accusedin brief, is that he along with one Sher Singh, was apprehended by a police party on 12.11.2001 and an air bag containing 4 kgs. 950 grams of charas which was kept by the accused near his legs was recovered. The accused earlier moved Cr.M.P. (M) No. 73 of 2002, titled Ranbir Singh v. State of H.P., which was dismissed by this Court vide its order dated February 26, 2002 on merits. It is now "-claimed by the accused that the charge sheet has not been forwarded the concerned Court against him within the period of 90 days as provided u/s 167 of the Code, therefore, he is entitled to be released on bail, irrespective of the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as ''the NDPS Act'').

I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the State and have also gone through the police report and the records.

It was contended by the learned Counsel for the accused that the provisions of Section 167 of the Code regarding release of the accused on bailin the event of the failure of the prosecution, to submit charge sheet within 90 days, are automatically attracted on such failure and the accused lawfully becomes entitled to be released on bail because of the default and the merits of the case have nothing to do with the operation of the said provisions. Since the default has been committed by the prosecution by non presentation of the charge sheet within the stipulated period, therefore, the accused is entitled to be released on bail. To substantiate his contention, the learned Counsel has relied on Jagdish Singh alias Jagdish Kumar alias Disha Vs. State of Punjab, wherein the Punjab and Haryana High Court, relying on the decision of the Apex Court in Union of India (UOI) Vs. Thamisharasi and Others, held that in view of the decision of the Apex Court in Thamisharasi''s case (supra), it becomes clear that the power to grant bail on account of mandate of law contained in the proviso to Sub-section (2) of Section 167 of the Code, is not subject to the restrictions contained in Section 37 of the NDPS Act.

In Thamisharasi case (supra), the Hon''ble Supreme Court held as follows:

The limitation on granting of bail specified in Clause (b) of Sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature, the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of Sub-section (2) of Section 167 Code of Criminal Procedure The only fact material to attract the proviso to Sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the Court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge sheet has been filed. This is fallacious. Till the complaint is filed, the accused is supplied no material from which he can discharge the burden placed on him by Section 37(1)(b) of the NDPS Act. In our opinion, such a construction of Clause (b) of Sub-section (1) Section 37 is not permissible.

It is, thus, clear from the aforesaid judgments that the provisions of Section 167 of the Code are not controlled by the provisions of Section 37 of the Act. However, the law as cited is of no help to the accused in the facts and circumstances of the case in hand.

Section 167(2)(a) of the Code provides that no Magistrate shall authorise the detention of an accused person in custody under the provisions of the said Section for a total period exceeding 90 days where the investigation relates to an offence punishable with death; imprisonment for life or imprisonment for a term of not less than 10 years and for a period not exceeding 60 days where the investigation relates to any other offence. Thus, the maximum period for which the Magistrate can u/s 167 of the Code authorise detention of a person where the investigation relates to an offence punishable with imprisonment of 10 or more years as the case against the accused is 90 days.

Sub-section (4) of Section 36A of the NDPS Act reads as follows:

(4) 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 aforesaid provisions apparently increase the maximum period of detention by a Magistrate u/s 167 of the Code to a period of 180 days in cases wherein the offence complained against is punishable u/s 19 or Section 24 or Section 27A of the NDPS Act or where the offence alleged to have been committed under the said Act involves commercial quantity of the contraband. Thus, an accused alleged to have committed any of the aforesaid offences may have the benefit of the provisions regarding grant of bail to him if the prosecution defaults in presenting the / charge sheet against the accused within 180 days or within the further period which may be extended by the special Court for a further period of one vear.

Section 5 of the Code reads as follows:

Saving Nothing contained in this Code shallin the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

It is evident on a bare reading of Section 5 (supra) that nothing contained in the Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force.

There is no dispute that the NDPS Act is a special law, therefore, anything contained therein which is contrary to the provisions of the Code, shall prevail.

In the case in hand, the accused was apprehended on 12.12.2001 and is in custody thereafter. According to the prosecution, he was found in possession of 4 kgs. 900 grams of charas i.e. commercial quantity. It is also not in dispute that the charge sheet against him has now been presented on 16.3.2002, whereas the period of 180 days during which the pre trial detention of the accused in custody can be lawfully ordered by virtue of the provisions of Section 36A of the NDPS Act, has not expired as yet. The accused, therefore, is not entitled to be released on bail by virtue of the provisions of Section 167 of the Code.

As a result, this application merits dismissal and is accordingly dismissed.