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2015 DIGILAW 644 (JHR)

Mahesh Bhagat v. State of Jharkhand

2015-05-19

RAVI NATH VERMA

body2015
JUDGMENT Challenge in this Revision Application under Sections 397 and 401 of the Code of Criminal Procedure (in short ‘the Code’) is against the order dated 31.03.2015 passed in Special Case No. 16 of 2014(K), passed by learned Special Judge, Khunti whereby and whereunder, the prayer for grant of bail of the petitioner under Section 167(2) of the Code has been dismissed. 2. It appears from the record that the petitioner was made accused in Khunti P.S. Case no. 122 of 2014 dated 28.09.2014 instituted under Sections 8, 21, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ‘the Act’) on the allegation that the informant, Superintendent of Police, Khunti received a secret information that the petitioner, who is living in his in-law’s house, is doing illegal business of Heroin/Brown Sugar along with others. Whereafter, a raid was conducted in the house and police party entered into the room and apprehended this petitioner Mahesh Bhagat and one Prakash Manjhi and on search of the room, a white packet kept in a carry-bag containing Heroin/Brown Sugar was found and after testing from D.D. Kit, it was found positive and the total weight of the seized article was 254 grams. The apprehended accused persons further disclosed the name of other accused persons, who were involved in narcotic business. It further appears from the record that petitioner was remanded in judicial custody on 29.09.2014 but when no charge sheet was submitted against the petitioner within 90 days, as provided under Section 36-A(4) of the Act, a petition was filed under Section 167(2) of the Code on the ground that petitioner, because of non-submission of the charge sheet within the stipulated period, has acquired a right to be released on bail but the prayer was opposed by the State counsel on the ground that as the seized article comes under commercial quantity under the aforesaid Section 36-4(A) of the Act, 180 days has been provided for submission of final report. The court below vide order dated 25.02.2015 rejected the prayer for bail. The court below vide order dated 25.02.2015 rejected the prayer for bail. It further appears that when even after lapse of the statutory period of 180 days, the charge sheet was not submitted, the petitioner again filed an application on 31.03.2015 under Section 167(2) of the Code on the ground of non-filing of charge-sheet even after completion of 180 days, with prayer to release him on bail, but the Court below vide order impugned again rejected the prayer holding that in view of provision of Section 36-A(4) of the act, the bail petition filed under Section 167(2) of the Code is not maintainable as one year time will be applicable. It further appears that no petition on behalf of Special Public Prosecutor appearing for the State was ever filed before the court below either for extension of time showing indication of progress of the investigation or stating the compelling reason for seeking the detention of this petitioner beyond the statutory period of 180 days. Being aggrieved by the said order, the present revision application has been preferred. 3. Mr. Deo, learned counsel appearing for the petitioner, while assailing the order impugned, submitted that the court below failed to appreciate the mandate given under Section 36-A(4) of the Act and also the provisions of Section 167(2) of the Code and without extending the period of detention to one year, as provided under the Act and without considering the circumstances responsible, rejected the prayer of the petitioner. It was also contended that the court below failed to take judicial notice that the Court has every power to extend the period of 180 days up to one year, but a reasoned order is required to be passed on the basis of report of the Public Prosecutor specifying the reasons for the detention. It was also submitted that the petitioner was arrested on 28.09.2014 and remanded in judicial custody on 29.09.2014 and since then he has been languishing in jail custody though the very object of the Act and legislative intent has been frustrated and violated. Hence, the petitioner deserves the benefit of Section 167(2) of the Code vis-a-vis the provisions of Section 36-A (4) of the Act. 4. Hence, the petitioner deserves the benefit of Section 167(2) of the Code vis-a-vis the provisions of Section 36-A (4) of the Act. 4. Contrary to the above submissions, learned counsel representing the State supported the order of Special Judge and submitted that even though there is no specific reason assigned in the impugned order extending that period, but it is amply clear from the order that the court below while considering the petition under Section 167(2) of the Code held that the same is not maintainable as one year time will be applicable and as such it will be deemed that the court below extended that period as provided under Section 36-A(4) of the Act. 5. I have considered the submissions of the learned counsels for the parties. Section 167 of the Code deals with the procedure and various sub-sections of the said Section provide for the maximum period beyond which a person cannot be detained and this period varies between 60 and 90 days keeping in view the gravity of the offence and if the investigation is not completed within those stipulated period, the accused is entitled to bail under Section 167(2) of the Code if he makes an application for that purpose and is prepared to furnish bail. Apparently, there is no provision for further extension of the period of detention under Section 167(2) of the Code beyond the specified period but the Narcotic Drugs and Psychotropic Substances Act, 1985 being a special statute provides that if the requirement of the Section has been strictly complied, the period can be extended up to one year. 6. Before I enter into the veils of the submissions of the counsels, I feel it necessary to reproduce Section 36-A(4) of the Act herein below for proper adjudication of the matter in dispute. 6. Before I enter into the veils of the submissions of the counsels, I feel it necessary to reproduce Section 36-A(4) of the Act herein below for proper adjudication of the matter in dispute. The said Section so far as it is relevant, reads as under:- “Section 36-A. Offences triable by Special Courts.-(1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974), (a)- (d) ……………………… (2)- (3) ……………………… (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 and eight 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. 7. From bare perusal of the aforesaid provision, it appears that the maximum period of 90 days fixed under Section 167 (2) of the Code has been extended to 180 days for several categories of offences under the Act but the proviso further empowers the Court to extend the period of detention in total go up to one year provided the stringent conditions provided therein are satisfied and are complied with. The conditions as it appears from the aforesaid provision are as follows:- (i) There must be a report of the public prosecutor on the record, (ii) The said report indicates the progress of the investigation, (iii)The report Must specify the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (iv) The period can be extended after notice to the accused. 8. The question, which needs to be considered at this stage, is as to whether any application was filed either by the Special Prosecutor or Public Prosecutor seeking the extension of the detention period beyond the statutory period of 180 days? 9. 8. The question, which needs to be considered at this stage, is as to whether any application was filed either by the Special Prosecutor or Public Prosecutor seeking the extension of the detention period beyond the statutory period of 180 days? 9. As I have already stated above that on perusal of the record of the Lower Courts, it appears that no any petition was filed for extension of the period beyond 180 days and even the order sheet maintained by the court below or in the order passed by the court below either on 25.02.2015 or in the order impugned, there is no whisper of filing of any application by the Public Prosecutor for extension of that period, what to talk of any compelling reasons or any report of the Public Prosecutor indicating the progress of the investigation. Even the mandatory requirement of issuance of notice to the accused before passing any order for extension has not been complied with except a letter, which was sent by the Forensic Science Laboratory to the Superintendent of Police, Khunti for removing the defects in the sample in order to send the required F.S.L. report and the fact that investigation is going on and it clearly specifies that the same does not fulfill the criteria laid down in the aforesaid section or even speaks of any remotely application of mind on the part of the Public Prosecutor. The same also does not indicate the report as required under the provision indicating the progress of the investigation nor compelling reasons have been disclosed, which completely violates the mandate. 10. Accordingly, this revision application is, hereby, allowed. The order impugned dated 31.03.2015 passed by the learned Special Judge, Khunti in Special Case No.16 of 2014(K), is set aside and the court below is directed to release the petitioner on bail in accordance with law.