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2004 DIGILAW 407 (PNJ)

Iqbal Singh v. State of Punjab

2004-04-01

S.S.SARON

body2004
JUDGMENT S.S. Saron, J. - Cr.M.No. 15690/2004 : Criminal miscellaneous application is allowed. Copy of order dated 5.3.2004 (Annexure A-1) passed by the learned Special Judge, Moga is taken on record. Cr. M. No. 6355M/2004 : 2. This is a petition under Section 439 of the Code of Criminal Procedure, 1973 (Criminal Procedure Code for short) for releasing the petitioner on bail in case FIR No. 157 dated 14.7.2003 registered at Police Station City Moga for the offence under Section 15 of Narcotic Drugs and Pschotropic Substances Act, 1985 (the Act for short). 3. The allegations in the FIR are that Station House Officer, Police Station City Moga while he was in his office on the date of the occurrence at about 3.00 p.m. he received a telephonic call from Shri Surinder Singh Sidhu, P.C.S., District Transport Officer, Moga that he along with his gunmen were checking vehicles on a road which leads from Joginder Singh chowk to Lahara- Amritsar in the area of bus stand Moga, a white Tata Sumo vehicle which was going towards Lahara Chowk was signalled to stop but the driver did not stop the vehicle and fled away along with it. On suspicion they followed the said vehicle and at about one furlong and some distance beyond the Octroi Post, the driver of Tata Sumo suddenly stopped it and on finding himself surrounded ran away under the cover of darkness. At about 11.00 p.m., the Tata Sumo was impounded under Section 207 of Motor Vehicles Act and checked. Eight bags of poppy husk were recovered so the Police was asked to reach at the spot and take appropriate action. From this information offence under Section 15 of the Act was committed and FIR was registered against unknown owner of the Tata Sumo vehicle. 4. Learned counsel for the petitioner has contended that the petitioner is not named in the FIR and he has been implicated only because he is owner of the vehicle and he was not present at the time of alleged recovery. Besides, personal identification parade had been carried out and there is nothing to connect the petitioner with the alleged recovery. Learned counsel for the petitioner has contended that the petitioner is not named in the FIR and he has been implicated only because he is owner of the vehicle and he was not present at the time of alleged recovery. Besides, personal identification parade had been carried out and there is nothing to connect the petitioner with the alleged recovery. Besides, an additional ground that he prays for release of the petitioner on bail is that challan in the case has not been filed within the period stipulated under Section 167(2) Criminal Procedure Code read with the provisions of Section 36-A(4) of the Act. It is also contended that the learned Special Court at Moga, while considering the case of the petitioner, failed to indicate the progress of the investigation and the specific reasons for the detention of the petitioner as envisaged by the proviso to Section 36-A(4) of the Act. 5. In response, Shri Yashwinder Singh, learned Assistant Advocate General, Punjab appearing for the State submits that keeping in view the facts and circumstances of the case and the recovery of eight bags of poppy husk, which are commercial quantity, the petitioner is not entitled to bail. He, however, accepts that the challan in the case has still not been filed but submits that the challan would be soon filed and, therefore, the petitioner is not entitled to the benefit of the provisions of Section 167(2) Criminal Procedure Code read with Section 36-A(4) of the Act. 6. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. 7. The FIR in the case was registered on 14.7.2003 and the petitioner was arrested on 14.8.2003. In terms of the aforesaid provisions of Section 167(2) Criminal Procedure Code read with Section 36-A(4) of the Act, the challan was required to be filed within 180 days by the prosecution. This was not filed and the petitioner moved an application on 11.2.2004 for releasing him on bail in view of the violation of the statutory provisions. 8-9. In terms of the proviso to Section 167(2) Criminal Procedure Code the detention of an accused person in custody in a case where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years is 90 days. 8-9. In terms of the proviso to Section 167(2) Criminal Procedure Code the detention of an accused person in custody in a case where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years is 90 days. The said provisions have been modified by the provisions of Section 36-A(4) of the Act which reads as under :- "36-A. Offences triable by Special Courts. - (1) to (3) xx xx xx xx (4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A 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 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." 10. A persual of sub-section (4) of Section 36-A of the Act shows that an offence punishable under Section 19 or 24 or Section 27-A or for offences involving commercial quantity the reference in sub-section (2) of Section 167 Criminal Procedure Code thereof to "ninety days", where they occur shall be construed as reference to "one hundred and eighty days". It is not in dispute that the challan has not been filed within the period of 180 days as the challan has not been filed till date. However, in terms of the proviso, it is envisaged that if it is not possible to complete the investigation within said period of 180 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 180 days. 11. In the case in hand, no specific report of the Public Prosecutor indicating progress of the investigation and the specific reasons for the detention of the accused beyond the said period have been shown. 11. In the case in hand, no specific report of the Public Prosecutor indicating progress of the investigation and the specific reasons for the detention of the accused beyond the said period have been shown. The learned Special Court, Moga in his order dated 5.3.2004, while declining the benefit of the provisions of Section 167(2) Criminal Procedure Code observed that when an accrued is involved in a criminal case efforts are made on his behalf by moving applications to various quarters including various offices of Police Department for getting initiated enquiries with the dominant motive to get absolved of the allegations of offences levelled against such accused and that when such tendency is prevailing in the area, notwithstanding the result of an enquiry, an accused cannot be allowed to sail in two boats at the same moment. The learned Special Judge made these observations keeping in view the fact that the file of the case was lying pending for enquiry in the office of I.V.C., A.D.G.P. Punjab since 23.12.2003 and due to pendency of file in the said office challan against the accused could not be filed in Court. It was further observed that it cannot be legally permissible that an accused may put hurdle in the investigation of the case and then get the benefit of delay in filing the challan under the provisions of Section 167(2) Criminal Procedure Code Besides, when the police file remained for such a long time in the office of I.V.C., A.D.G.P., the Investigating Officer was deprived of making progress in investigation further till 23.12.2003. The progress in the investigation was hindered due to reasons of getting initiating enquiry on behalf of the accused. Therefore, non-filing of challan, it was observed, had been convincingly explained. 12. In my view, the proviso to Section 36-A(4) of the Act envisages that the period for filing challan may be extended by 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. In case the file was lying pending in the office of I.V.C., A.D.G.P., Punjab, it cannot possibly be construed to be a progress of the investigation and neither does this constitute a valid specific reason for the detention of the accused. In case the file was lying pending in the office of I.V.C., A.D.G.P., Punjab, it cannot possibly be construed to be a progress of the investigation and neither does this constitute a valid specific reason for the detention of the accused. The words "progress of the investigation" connote effective steps taken for the collection of evidence conducted by the Police Officer. The fact that the file was lying in an office of the Police Department cannot be construed to be a progress of the investigation. Besides, the words "specific reasons for the detention of the accused" envisage that there must be reasons in support of further detention of the accused which must be specific. The condition to record reasons has been held to introduce clarity and exclude arbitrariness and satisfies the party against whom the order is passed. Therefore, there has been an infraction of the provision of Section 167(2) Criminal Procedure Code read with Section 36-A(4) of the Act. In the circumstances, the petitioner has been kept in custody for a period more than the period prescribed under proviso (a) to Section 167(2) Criminal Procedure Code read with Section 36-A(4) of the Act and that too without indicating the progress of the investigation or specific reasons for the detention of the accused beyond the period of 180 days. As such, the petitioner cannot be kept in custody more than the prescribed period and when the prescribed period has lapsed, the petitioner gets right to be released on bail even if the investigation is incomplete and his said right to be released on bail is absolute which may, however, be subject to cancellation of bail under the provisions of Chapter- XXXIII of the Criminal Procedure Code The grant of the benefit of the statutory provisions is not dependent on the question whether there is a prima facie case against an accused and whether the offence is of serious nature. 13. The contention of the learned counsel for the State that the challan would now be soon presented and, therefore, the petitioner is not entitled to bail is also not of much significance. 13. The contention of the learned counsel for the State that the challan would now be soon presented and, therefore, the petitioner is not entitled to bail is also not of much significance. The Supreme Court in Udey Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Crl.) 452 has held that when the challan is not put up within the period stipulated in Section 167(2) Criminal Procedure Code the accused gets an indefeasible right to get bail and when an application is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour the Magistrate/Court must dispose it of forthwith on being satisfied that the accused has been in custody for the requisite period as specified and no charge-sheet has been filed and subsequent filing of challan during the pendency of the bail application would not frustrate or extinguish the benefit of the right and, therefore, if an accused it entitled to be released on bail by application of proviso to Section 167(2) Criminal Procedure Code and the accused is to be released on bail on his furnishing the necessary bail bond. 14. Keeping in view the above observations, the petitioner, in my view, is entitled to the benefit of the statutory provisions and his further custody cannot be said to be valid or justified and the petitioner is entitled to bail in exercise not only for the infraction of the statutory provisions but also to otherwise secure the ends of justice for which this Court has inherent jurisdiction and jurisdiction which it otherwise possesses. 15. Consequently, the petition is accepted and the petitioner shall be released on bail subject to his furnishing adequate personal bond and surety in the like amount to the satisfaction of the l;earned Chief Judicial Magistrate, Moga. Petition allowed.