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2014 DIGILAW 520 (PNJ)

Jagjit Singh alias Jaggi v. State of Punjab

2014-03-12

BHARAT BHUSHAN PARSOON

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JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- In FIR No.106 dated 20.4.2013 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) registered at Police Station, Mandi Gobindgarh, District Fatehgarh Sahib, petitioner-accused Jagjit Singh @ Jaggi lodged, in Maximum Security Jail, Nabha, seeks bail on the plea that he is continuing in custody in a false case against him for more than 180 days but the investigating agency has not furnished report under Section 173 Cr.PC. The petitioner, thus, seeks to avail benefit of Section 167(2) Cr.PC read with Section 36A(4) of the Act. He pleads his date of arrest as 20.4.2013. 2. Respondent-State, on the other hand, claims that before completion of 180 days, an application for extension of time for filing the final report under Section 173 Cr.PC had been made on 15.10.2013 (Annexure P-2) and thus, bail on the ground of non-furnishing of final investigational report, is not tenable. 3. Hearing has been provided to learned counsel for the parties while going through the paper book. 4. Maximum period of 90 days fixed under Section 167(2) Cr.PC has been increased to 180 days for several category of offences under the Act but the proviso appended thereto authorises yet further period of custody which is extendable upto one year provided the conditions stipulated therein are complied with. The necessary conditions are as under: (1) a report of the public prosecutor; (2) which indicates the progress of the investigation; (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days; and, (4) notice is given to the accused. 5. No doubt, an application was moved by the investigating agency on 15.10.2013 for extension of filing of final report under Section 173 Cr.PC as report of the chemical examiner was awaited. Status-report furnished by the respondent-State revealed that said application of the investigating agency was without any report of the public prosecutor. This application had not even been moved through the public prosecutor. 6. However, the status report indicates that there was no remissness on the part of the investigating agency in as much as it had despatched the parcel containing the sample tablets to the laboratory for testing on 26.4.2013 i.e. after six days of registration of FIR on 20.4.2013. This application had not even been moved through the public prosecutor. 6. However, the status report indicates that there was no remissness on the part of the investigating agency in as much as it had despatched the parcel containing the sample tablets to the laboratory for testing on 26.4.2013 i.e. after six days of registration of FIR on 20.4.2013. The investigating agency has further ventured to explain the reasons for not routing the application, seeking extension in time for furnishing report under Section 173 Cr.PC through the Public Prosecutor alongwith his report as he was stated to be busy in another court. It is further averred that notice of the said application was served on the accused-petitioner. The final report in the case is stated to have been filed in the court on 24.12.2013. 7. The facts, thus, reveal that there is no strict compliance with provisions of Section 36A(4) of the Act. In Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and another, [2010(2) Law Herald (SC) 1076] : 2010(1) RCR (Criminal) 947, the Hon’ble Supreme Court has held that under Section 36A(4) of the Act, extension could be given by the court 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. It was further held that even if application by the investigating officer for extension of time was either routed through the Public Prosecutor or supported by him, would not make the said application a report of the Public Prosecutor. 8. It was held by the Hon’ble Supreme Court in a catena of judgments that right to release on bail under proviso to Section 167(2) Cr.PC is indefeasible. It is enforceable by accused only from time of default till filing of challan or charge-sheet. But this right of accused to be released on bail would get extinguished if application under Section 167(2) Cr.PC was filed after the charge sheet was received by the court. Admittedly, the petitioner had moved application under Section 167(2) Cr.PC on 24.10.2013 whereas the challan had been filed on 24.12.2013. In these circumstances, right to be released on bail has accrued in favour of the petitioner for non-filing of report within the statutory period. 9. Admittedly, the petitioner had moved application under Section 167(2) Cr.PC on 24.10.2013 whereas the challan had been filed on 24.12.2013. In these circumstances, right to be released on bail has accrued in favour of the petitioner for non-filing of report within the statutory period. 9. Consequently, for the reasons aforestated, this petition is allowed and the petitioner is ordered to be released on bail to the satisfaction of the Chief Judicial Magistrate, Fatehgarh Sahib. 10. Nothing observed above shall have any bearing on the merits of the case. ---------0.B.S.0------------