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2009 DIGILAW 238 (CHH)

Bablu Khan v. State of Chhattisgarh

2009-09-08

T.P.SHARMA

body2009
ORDER 1. This revision petition is directed against the order dated 10.7.2009 passed by the Special Judge appointed under N.D.P.S. Act, 1985 whereby learned Special Judge has dismissed the application for release of the petitioners filed under Sections 167(2) of the Code of Criminal Procedure, 1973 (in short `the Code') on the ground that offence is punishable up to 10 years and therefore, the prosecution is at liberty to file charge sheet within 90 days and not without 60 days. 2. The order is challenged on the ground that if the charge sheet for the offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years is said to have been committed by the person, then he may release on bail and if the charge sheet is not filed within 90 days from the period of detention of the accused and in every cases if investigation is not completed within 60 days and the charge sheet is not filed before the Court, then the accused shall be released on bail, but the Special Judge has not considered legal aspect of the case and thereby committed illegality. 3. I have heard learned counsel for the parties and perused the order impugned. 4. Learned counsel for the petitioners submits that according to case of the prosecution, 235.77 gram Heroin (brown sugar) was found in possession of the petitioners. The prosecution has not filed charge sheet within 60 days from the date of detention of the petitioners. The petitioners filed an application for their release under Section 167(2) of the Code, but same has been dismissed by the Special Judge on the ground that offence is punishable with fine of Rs.1 lakh and imprisonment for 10 years and same is included in imprisonment not less than 10 years. Learned counsel further submits that imprisonment up to 10 years is not included in imprisonment not less than 10 years. Learned counsel placed reliance in the matter of Rajeev Chaudhary v. State (N.C.T.) of Delhi1 in which the Apex Court has held that offence punishable with imprisonment up to 10 years is not included in imprisonment less than 10 years. 5. On the other hand, order impugned is supported on behalf of counsel for the respondent/State. 6. Learned counsel placed reliance in the matter of Rajeev Chaudhary v. State (N.C.T.) of Delhi1 in which the Apex Court has held that offence punishable with imprisonment up to 10 years is not included in imprisonment less than 10 years. 5. On the other hand, order impugned is supported on behalf of counsel for the respondent/State. 6. From perusal of the order impugned, it appears that the petitioners were found in possession of Heroin which is above small quantity and below the commercial quantity. Same is punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short `the Act, 1985') with imprisonment which may extend to 10 years and with fine which may extend to Rs.1 lakh. 7. Section 167 (2) (a) (i) of the Code provides that if the charge sheet is not filed within 90 days relating to the offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, then the accused person shall be released on bail if he is prepared to and does furnish bail. Section 22 (b) of the Act, 1985 provides punishment imprisonment which may extend to 10 years and fine which may extend to Rs.1 lakh. The imprisonment which may extend to 10 years is not included in punishment not less than 10 years. The punishment of imprisonment for not less than 10 years is minimum punishment of 10 years and imprisonment which may extend to 10 years is maximum punishment of 10 years which may inflict upon the accused. The punishment provides for the offence punishable under Section 22 (b) of the Act, 1985 is squarely fall under the category of Section 167 (2) (a) (ii) of the Code and if the charge sheet is not filed within 60 days from the date of detention of the petitioner, then he is entitled for release on bail if he prepared to and does furnish bail. 8. For the foregoing reasons, the order impugned is not sustainable under the law and deserves to be set aside. 9. Consequently, the revision is allowed. Order impugned is hereby set aside. The case is remanded back to the Court of Special Judge, Korba for considering the application filed by the petitioners under Section 167 (2) (a) (ii) of the Code in accordance with law.