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2016 DIGILAW 1039 (PNJ)

Sandeep Kumar v. State of Punjab

2016-04-01

TEJINDER SINGH DHINDSA

body2016
JUDGMENT Mr. Tejinder Singh Dhindsa J.: - The present petition has been filed under Section 439 Cr.P.C. read with Section 167(2) Cr.P.C. seeking benefit of regular bail to the petitioner in case FIR No.152 dated 25.08.2015, under Section 22 of the NDPS Act, registered at Police Station Sadar Patiala, District Patiala. 2. Suffice it to notice that the petitioner was arrested on 25.08.2015 and as per prosecution version, the alleged recovery effected is of 2 litres of intoxicating liquid. 3. Since the statutory period of 180 days for presentation of challan was on the verge of expiry, Investigating Agency preferred an application under Section 36A of the NDPS Act seeking extension of time. In the light of order dated 20.02.2016 passed by the Judge, Special Court, Patiala, an extension of 15 days was granted by the trial Court for filing a report under Section 173 Cr.P.C. On the other hand, the petitioner moved an application under Section 167(2) Cr.P.C. seeking benefit of bail. However, such application has been declined vide order dated 25.02.2016 ostensibly on the ground that extension of 15 days already stands granted for completion of investigation and for submission of challan. 4. Counsel for the parties have been heard. 5. Under Section 167 of the Code of Criminal Procedure and under its various sub-sections, the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view the gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act. Under Section 36-A of the Act, the period of detention may go on to a total of one year subject to satisfaction and compliance of the stringent conditions provided therein i.e. (i) upon a report of the Public Prosecutor; (ii) which in turn indicates the progress of the investigation; (iii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days; and (iv) after notice to the accused. 6. 6. The Hon’ble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, 1994(3) RCR (Criminal) 156 while dealing with the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA which is pari-materia with the proviso to sub- Section (4) of Section 36-A of the Act had categorically held that even though the proviso does not specifically mandate the issuance of a notice to the accused while seeking extension yet the issuance of a notice has to be read into the provision which would be, both, in the interest of the accused, as also the prosecution as well as for doing complete justice between the parties. Such requirement was held to be in consonance with the principles of natural justice. 7. Adverting back to the facts of the present case the applications submitted by the investigating agency under section 36-A of the Act seeking extension of time had cited only one ground i.e. report of the Chemical Examiner having not been furnished. 8. There has been a non-compliance of the provisions contained in Section 36-A of the Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reasons in seeking detention of the accused beyond a period of 180 days. 9. In the facts of the present cases, no such compelling reasons had been cited by the investigating agency apart from mentioning that the Chemical Examiner report had not been forthcoming. This Court would have no hesitation in observing that the impugned orders granting extension as also declining bail to the petitioners have been passed in a routine and mechanical fashion. The petitioners under section 167(2) Cr.P.C had an indefeasible right notwithstanding the presentation of the challan thereafter. 10. Accordingly, the present petition is allowed. Petitioner be enlarged on bail subject to satisfaction of Chief Judicial Magistrate/Duty Magistrate, Patiala. 11. Petition is disposed of.