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2006 DIGILAW 3152 (RAJ)

Anita Bai v. State of Rajasthan

2006-12-04

HARBANS LAL

body2006
JUDGMENT 1. - This revision petition under Section 397 read with Section 401 Cr.P.C. is directed against the order dated 14.9.2006 passed by the learned Special Judge, NDPS Act Cases, Jhalawar, whereby bail application arising out of FIR No. 87/2006 PS Aklera Distt. Jhalawar has been disallowed. 2. Learned counsel for the petitioners has inter-alia contended that the petitioners were arrested no 15.3.2006. The period of 180 days expired on 11.9.2006. The bail application was moved on 12.9.2006 and thereafter, charge-sheet was filed on 13.9.2006 i.e. on 182nd day of the arrest of the petitioners. Thereafter, the bail application was rejected on 14.9.2006 stating that on the application filed on 5.9.2006 period of 180 days is being extended by a further period of 15 days as prayed for in the application. 3. Learned counsel for the petitioners has contended that in view of the provisions of Section 167(2) Cr.P.C. read with Section 36A(4) of the NDPS Act, 1985, the petitioners became entitled to bail. Simply because the bail application was disposed of on 14.9.2006 after filing of the charge-sheet on 13.9.2006 would not dis-entitle them from release on bail which is a 'compulsive bail'. Reference has been made to State of Maharashtra v. Mrs. Bharati Chandmal Varma @ Ayesha Khan, 2002 R.Cr.D. 109 (SC) , Uday Mohanlal Acharya v. State of Maharashtra, 2001 Criminal 319 , Union of India v. Thamisharasi & Ors., 1995(2) Crimes 523 , Hiralal v. State of Rajasthan-2005(2) WLC (Raj.) 509 , State v. Mangilal-2005(1) WLC (Raj.) 689 , Manoj v. State of Madhya Pradesh, 1999(2) NDPS Cases 1 and Union of India v. Thamisharasi & Ors.-1995(2) EFR 135 . 4. Learned Public Prosecutor has opposed the bail application. He has submitted that on the application filed on 5.9.2006, the trial court has on 14.9.2006 retrospectively extended the period of investigation by 15 days. So, the petitioners were not entitled to be released on bail. 5. I have considered the rival submissions made at the bar and have perused the relevant record as well as the provisions of law governing the grant of bail in such matters. Sub-section (4) of Section 36-A of the NDPS Act, 1985 reads as under: "36A(4). So, the petitioners were not entitled to be released on bail. 5. I have considered the rival submissions made at the bar and have perused the relevant record as well as the provisions of law governing the grant of bail in such matters. Sub-section (4) of Section 36-A of the NDPS Act, 1985 reads as under: "36A(4). 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 (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. 6. It is apparent from a bare perusal of the proviso appended to the aforesaid provision that the special court may extend the said period of 180 days provided in sub-section (4) of Section 36A of the NDPS Act, 1985 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 180 days. But even a cursory look at the application dated 5.9.2006 indicates that neither the progress of the investigation is mentioned therein nor reasons for detention of the petitioners have been mentioned. It is also not mentioned as to why and for how long the period of investigation is required to be extended in this matter. It is also obvious that no order extending the period of 180 days by a further period of 15 days was passed on 5.9.2006. It was only when the court was called upon to decide the application of the petitioners under the provisions of Section 167(2) Cr.P.C. r/w Section 36A of the NDPS Act, 1985 that the court has passed the order on the said application extending retrospectively the period by 15 days. The detention of the petitioners in the meanwhile had become illegal and unauthorised. The detention of the petitioners in the meanwhile had become illegal and unauthorised. It cannot be said to be the legislative intendment and to my humble mind, such a course of action on the part of the Special Judge cannot be approved of and is clearly unsustainable because it tantamounts to defeating and frustrating the "indefeasible right of the petitioners. It is abundantly clear from the aforesaid application that no prayer for extending the period for investigation or detention of the accused was made. It is only an application for adjournment. 7. In this view of the matter, therefore, the order of the learned Special Judge, NDPS Cases cannot be sustained in the eye of law and the same is liable to be set-aside. 8. Consequently, the revision petition is allowed. The order dated 14.9.2006 passed by the learned Special Judge, NDPS Act Cases, Jhalawar is set-aside and it is directed that the petitioners shall be released on bail under the proviso to Sub-section (2) of Section 176 Cr.P.C. read with Section 36A(4) of the NDPS Act on their furnishing a personal bond each in the sum of Rs. 50,000/- with two sureties in the sum of Rs. 25,000/- each to the satisfaction of the concerned Special Judge, NDPS Act Cases, Jhalawar for their appearance before the said court on each and every date of hearing until conclusion of the trial.Revision allowed - Bail granted. *******