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2003 DIGILAW 297 (CAL)

SUBODH KUNDU v. STATE OF WEST BENGAL

2003-06-20

ARUNABHA BARUA, NURE ALAM CHOWDHURY

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NURE ALAM CHOWDHURY, ARUNABHA BARUA ( 1 ) THE judgment of the Court was as follows: in this application for bail under Section 439 of the Code of Criminal Procedure, the accused-petitioner Subodh Kundu has prayed for bail in connection with Ranaghat P. S. Case No. 139/2002 dated 20/4/2002 under Section 20 (1) of the Narcotic Drugs and Psycho-tropic Substances Act, hereinafter referred to as N. D. P. S. Act for short. ( 2 ) THE allegations against the petitioner in brief, as transpire from the F. I. R. are that acting on a source information, the complainant along with force, held raid in the house of the petitioner on 22/4/2002 in between 15. 05 hrs. and 16. 55 hrs. and during the course of search 20 Kgs. 450 gms. of Ganja (suspected to be) was recovered from a big steel trunk. The said article responded positive to the test of Ganja on field test and accordingly seized under proper seizure list in accordance with law and the petitioner could not produce any document in support of his licit possession of the said weight of Ganja. The petitioner was arrested by the Investigating Agency on the same day (22. 4. 02) and produced before the learned Judge Special Court under N. D. P. S. Act Nadia on the next day (23. 4. 02) and on the prayer of the Investigating Agency the petitioner was remanded to police custody till 26. 4. 2002 and thereafter remanded to jail custody. ( 3 ) IT is not disputed that the seized ganja comes within the category of commercial quantity and as such the statutory period for completion of investigation as envisaged under Section 167 (2) of the Code of Criminal Procedure read with Section 36a (4) of the N. D. P. S. Act (as amended) is 180 days. ( 3 ) IT is not disputed that the seized ganja comes within the category of commercial quantity and as such the statutory period for completion of investigation as envisaged under Section 167 (2) of the Code of Criminal Procedure read with Section 36a (4) of the N. D. P. S. Act (as amended) is 180 days. ( 4 ) IN the instant case therefore the statutory period of completion of investigation expired on 19th October, 2002 but we find that the charge-sheet was submitted in Court on 6/1/2003 long after the expiry of the statutory period of limitation of 180 days as the order dated 24/10/2002 of the learned Vacation Judge (Annexure P-1 to the application) does not reflect that the charge-sheet was filed in Court on 8/10/2002 and the non-filing of charge-sheet in Court on 8/10/2002 is confirmed from the order dated 11/4/2003 of the learned Additional Sessions Judge, 1st Court, Krishnanagar, Nadia that the charge-sheet No. 264/02 dated 8/10/2002 was first sent to the office of the learned P. P. Nadia instead of sending it to Court and the charge-sheet was received by the Court on 6/1/2003. ( 5 ) SECTION 167 (2) of the Code of Criminal Procedure reads as follows: the Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in the custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: provided that (a) the Magistrate may authorise the detention of the accused person, otherwise, than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Section 36a (4) of the N. D. P. S. Act reads as follows: in respect of persons accused of an offence punishable under Section 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 thereof to ninety days where they occur shall be construed as reference to one hundred and eighty days. ( 6 ) 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 upto 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. ( 7 ) THUS on consideration of the provisions of Section 167 (2) of the Code of Criminal Procedure and Section 36a (4) of the N. D. P. S. Act as amended we are of the view that the sending of the charge-sheet to the learned P. P. cannot be treated as submission of charge-sheet in Court and the proviso to Section 36a (4) of the N. D. P. S. Act (as amended) clearly envisages that the Special Court may extend the period for completion of investigation upto 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 180 days before the expiry of the said statutory period of 180 days and not on the application or prayer of the investigating agency instead of the report of the Public Prosecutor as contained in the proviso. ( 8 ) WE do not find any such report of the Public Prosecutor in the instant case. Moreover, we find that the learned Judge also erred in directing the charge-sheet to be kept with the record instead of proceeding under Chapter XIV of the Code of Criminal Procedure. ( 9 ) IN arriving to our aforesaid views and findings we have followed the ratio of the reported decisions of the Apex Court given below: (a) Hitendra Vishnu Thakur and Others v. State of Maharashtra and Ors) (b) Union of India v. Thamis Arasi and Ors. etc. On consideration of the aforesaid facts and circumstances and the materials on record and the submissions of the respective parties in the instant case, we order and direct that the petitioner shall be released on bail of Rs. 10,000. etc. On consideration of the aforesaid facts and circumstances and the materials on record and the submissions of the respective parties in the instant case, we order and direct that the petitioner shall be released on bail of Rs. 10,000. 00 (Rupees ten thousand) with two sureties of like amount one of them must be local to the satisfaction of the learned Judge, 2nd Special Court under N. D. P. S. Act Nadia in connection with Ranaghat P. S. Case-No. 139 dated 22/4/2002 under Section 20 of the N. D. P. S. (as amended) in N. D. P. S. Spi. 7/2002 on condition that the petitioner shall meet the Officer-in-Charge of Ranaghat Police Station every alternate day between 2 P. M. to 5 P. M. until further orders of this Court. Petition allowed.