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2011 DIGILAW 437 (PNJ)

Ishwar Jat v. State of Punjab

2011-02-03

ALOK SINGH

body2011
JUDGMENT Mr. Alok Singh, J (Oral): - This is an application seeking regular bail in case FIR No.61 dated 27.4.2010 under Sections 18/61of NDPS Act, P.S. Sadar Malout, Ludhiana, District Muktsar. 2. Undisputedly, petitioner was arrested on 27.4.2010 and was produced before the Court on 28.4.2010 and was sent in judicial custody on 28.4.2010. Undisputedly, petitioner has moved bail application under Section 167(2) of the Cr.P.C. on 28.6.2010. Undisputedly, challan was submitted in the case on 5.7.2010. 3. Learned counsel for the petitioner has vehemently argued that as per prosecution story, 2.5 Kgs opium was said to be recovered from the petitioner. She further argued that as per the Central Government Gazette Notification, at Sr. No.92, commercial quantity of opium is shown to be 2.5 Kgs. Learned counsel for the petitioner further argued that in view of Section 2(viia), commercial quantity would mean the quantity greater than the quantity specified by the Gazette Notification. She has placed reliance on the judgement of the Full Bench of the Himachal Pradesh High Court in the matter of Ratto Vs. State of H.P., 2004(1) RCR (Criminal) 501 and in the case of Mander Singh Vs. State of Punjab, reported in 2005(2) RCR (Criminal) 634 and has argued that any quantity more than 2.5 Kgs would be commercial quantity and upto 2.5 Kgs, it would not be a commercial quantity, hence Section 37 of the NDPS Act has no application. As per learned counsel for the petitioner, challan was not submitted within 60 days, which ought to have been submitted within 60 days in view of noncommercial quantity in which maximum punishment under Section 18(a) is six months. 4. Learned counsel for the petitioner has placed reliance on the judgement of the Hon’ble Apex Court in the matter of Uday Mohan Lal Acharya Vs. State of Maharashtra, (2001) 5 SCC 453, wherein the Apex Court has held as under:- “1. Under the proviso to sub-Section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to sub-Section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid sub-Section (2) of Section 167, a Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression “if not already availed of” used by this Court in Sanjay Dutt case must be understood to mean when the accused files and application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.” 5. Learned Additional Advocate General, Punjab has stated that in view of the judgement of the Full Bench of the Himachal Pradesh High Court in Ratto’s case (supra), it seems to be non-commercial quantity. 6. Since petitioner is in judicial custody w.e.f. 28.4.2010 and prima-facie, it seems that 2.5 Kgs of opium is non-commercial quantity and in view of the fact that challan was not submitted within 60 days as mandated by Section 167(2)(a)(ii) Cr.P.C., the accused is entitled to be enlarged on bail in view of the dictum of the Apex Court in Uday Mohan Lal Acharya’s case (supra). 7. Let the petitioner be released on bail during the trial to the satisfaction of the trial Court. 8. Petition stands disposed of. ---------0.B.S.0------------