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2005 DIGILAW 489 (PNJ)

Jaswinder Singh v. State of Punjab

2005-04-05

VIRENDER SINGH

body2005
JUDGMENT Virender Singh, J. - Jaswinder Singh and Bir Singh petitioners have filed the instant petition under section 439 Criminal Procedure Code read with Section 167(2) Criminal Procedure Code for the grant of regular bail to them in a case bearing FIR No. 143 dated 20.10.2003 registered under section 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short the Act), at Police Station, Sangat. I have heard Mr. S.S. Sidhu, learned counsel for the petitioners and Ms. Sonia Virk, learned Assistant Advocate General, Punjab. With their assistance, I have also gone through the entire record. The concerned police official is also present with the complete police file. Mr. Sidhu contends that the present petitioners were not apprehended at the spot and no recovery had been effected from the petitioners; that they have been booked subsequently on the basis of the statement of one Sohan Singh, recorded under Section 161 Criminal Procedure Code on 1.1.2004, in which it has been stated that the present petitioners had made an extra judicial confession before him on 9.12.2003, showing their involvement in the present case. According to the learned counsel, the FIR is dated 23.10.2003, the so-called extra judicial confession is shown to have been made on 9.12.2003, whereas the statement of Sohan Singh, is recorded on 1.1.2004. This fact, by itself, is sufficient to show that the case of the prosecution qua the present petitioners is not made out. 2. Another ground on which the learned counsel relies very heavily is that the prosecution agency had no evidence against the petitioners and for this reason, the challan was not presented against the petitioners even after the lapse of 180 days. The learned counsel contends that after the lapse of the stipulated period, an application was moved by the petitioners on 24.1.2005 praying therein that the petitioners were entitled to bail as a matter of right under the provisions of Section 167(2) Criminal Procedure Code on account of the aforesaid lapse and since no report was submitted by the Public Prosecutor indicating the progress of the investigation, requested for the extension of the time beyond the said period of 180 days mentioning the specific reasons, thus valuable right has accrued to the petitioners for the grant of bail. According to the learned counsel, the application of the petitioners has been declined by the learned special Court, Bathinda, vide impugned order dated 2.2.2005 without any basis. 3. Strengthening his arguments, Mr. Sidhu has drawn my attention to Section 36-A(4) of the Act and submits that in the present case, the challan was submitted on 25.1.2005 and by that time, 180 days had already elapsed. Drawing my attention to the applications moved by the prosecution on 12.1.2005 and 24.1.2005, the learned counsel submits that both applications were moved in routine seeking the judicial remand of the petitioners, which were forwarded by the Public Prosecutor in a casual manner and on both the applications, the learned Court has remanded the petitioners to judicial custody for 14 days. He submits that the main application is dated 24.1.2005, vide which the judicial remand of the petitioners was asked for stating therein that the investigating is not complete. According to the learned counsel, the Court had extended the time for investigation on the request of the Investigation Agency. This cannot be said to be the report of the Public Prosecutor indicating the progress of the investigation and specifying the reasons for the detention of the accused beyond the said period of 180 days. 4. In support of the aforesaid submissions. Mr. Sidhu relied upon the judgment of this Court rendered in Criminal Misc. No. 6355-M of 2004 titled as Iqbal Singh v. State of Punjab, decided on 1.4.2004 and a judgment of a Division Bench of Calcutta High Court rendered in Subodh Kundu v. State of Calcutta, 2004(3) RCR(Criminal) page 117. Mr. Sidhu then submits that once the challan was not filed within the stipulated period, accused gets an indefeasible right to get bail and subsequent filing of the challan during the pendency of the bail application, will not extinguish the said right. In the instant case also, the bail application was moved on 24.1.2005 and the challan was filed on 25.1.2005, therefore, the right had accrued to the petitioner on 24.1.2005 itself. In support of his contention, Mr. Sidhu relied upon a judgment of the Honble Apex Court rendered in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Criminal) 452 (SC). 5. In the instant case also, the bail application was moved on 24.1.2005 and the challan was filed on 25.1.2005, therefore, the right had accrued to the petitioner on 24.1.2005 itself. In support of his contention, Mr. Sidhu relied upon a judgment of the Honble Apex Court rendered in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Criminal) 452 (SC). 5. The learned State counsel has, however, opposed the bail application stating that the recovery effected of the contraband is of commercial quantity and as such Section 37 of the Act stands as a bar for releasing the petitioners on bail. The learned State counsel further contends that before the application could be decided, the challan was put up in the Court and as such, the petitioners cannot claim to be released on bail on account of not filing the challan within the stipulated period of 180 days. The learned State counsel then submits that although there is no specific report made by the Public Prosecutor seeking extention of the time, but forwarding of the application for the same on 24.1.2005, reflects that by that date, the investigation was not complete and for this reason, the concerned Court had remanded the petitioners to further judicial custody. He submits that this amounts to compliance of Section 36-A(4) of the Act. 6. After hearing the rival contentions of the either side, I am of the considered view that the petitioners deserve the concession of bail on account of the fault of the prosecution in not filing the challan within the stipulated period (180 days). 7. Admittedly, the petitioners are arrested on 27.7.2004. They were produced in Court on 28.7.2004. Since 30.7.2004, they are in judicial custody. The other admitted position is that on 23.1.2005, the stipulated period of 180 days had expired. The challan in this case is filed on 25.1.2005. 8. In terms of provisions of 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 read as under :- "36-A. Offences triable by Special Courts. The said provisions have been modified by the provisions of Section 36-A(4) of the Act, which read 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 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." 9. In the case in hand, no specific report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the petitioners beyond the said period have been shown. While dealing with the similar situation, this Court in the case of Iqbal Singh v. State of Punjab (supra) observed as under : "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. 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 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 no infraction of the provision of Sections 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 provision (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 (for) 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." 10. In the aforesaid judgment, the judgment of the Honble Apex Court delivered in Uday Mohanlal Acharya v. State of Maharashtra (supra) was also relied on. The case of the present petitioner is squarely covered by the aforesaid judgments. 11. The judgment of the Division Bench of the Honble Calcutta High Court delivered in the case of Subodh Kundu v. State of Calcutta (supra) also covers the case of the petitioner for the relief sought. In the said judgment, the charge-sheet was not filed within the stipulated period of 180 days. The Honble Division Bench observed that the Court can extend the time on the request of the Public Prosecutor and not on the request of the Investigating Agency and the accused is entitled to bail if no request for extention is made by the Public Prosecutor. The Honble Division Bench observed that the Court can extend the time on the request of the Public Prosecutor and not on the request of the Investigating Agency and the accused is entitled to bail if no request for extention is made by the Public Prosecutor. The relevant part of the aforesaid judgment reads as under :- "7. Thus on consideration of the provisions of Section 167(2) of the Code of Criminal Procedure and Section 36-A(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 36- A(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." 12. I have perused the two applications moved by the prosecution agency, seeking the extention of the judicial remand. The same are dated 12.1.2005 and 24.1.2005. Both the verbatim the same. The said applications were moved by the concerned police official stating therein that the investigation is not complete and for this reason, the accused be remanded to judicial custody. Both the applications are forwarded by the Public Prosecutor simply stating "forwarded". The orders passed on these applications are again the same which read as under:- "Heard. Accused are remanded to judicial custody." 13. On the first application, the accused were remanded to judicial custody till 24.1.2004 and on the second application moved on 24.1.2005, the accused were remanded to judicial custody till 7.2.2004. This indicates that there is non-application of mind on behalf of the Public Prosecutor. Accused are remanded to judicial custody." 13. On the first application, the accused were remanded to judicial custody till 24.1.2004 and on the second application moved on 24.1.2005, the accused were remanded to judicial custody till 7.2.2004. This indicates that there is non-application of mind on behalf of the Public Prosecutor. Once the Public Prosecutor was aware of the fact that the stipulated period was going to expire on 24.1.2005 and it was not possible to complete the investigation within the said period, he should have indicated the progress of the investigation apprising the Court of the entire investigation and the concerned Court then could extend the time beyond the said period of 180 days by giving specific reasons. In the case in hand, neither the progress of the investigation has been disclosed before the concerned Court nor any specific reasons have been given by the Court for extending the time. In my considered view, this is in disregard to the specific provisions enumerated under Section 36-A(4) of the Act. 14. I do not feel the necessity of entering into the merits of the case for the reasons that in my considered view, the petitioners are entitled to the benefit of the statutory provisions and their further detention, thus, becomes unwarranted. 15. Consequently, the present petition is allowed. Both the petitioners are ordered to be released on bail on their furnishing adequate bail/surety bonds to the satisfaction of CJM/Trial Court, Bathinda. Petition allowed.