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2016 DIGILAW 1725 (HP)

Kiran Kumari v. State of H. P.

2016-08-20

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This judgment shall dispose of both the petitions arising out of FIR No. 70/16, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as ‘the Act’ in short, in Police Station, Palampur, District Kangra, H.P. 2. The allegations against the accused-petitioners in a nut-shell are that on 5.5.2016, around 5.25 p.m., SHO of Police Station, Palampur, while patrolling at SSB Chowk area has received a secret information that Charas is being transported in Alto Car Bearing No.HP-01M-2294 enroute Baijnath to Palampur. The information so received was reduced into writing and forwarded to Sub-Divisional Police Officer, Palampur. The Station House Officer himself proceeded towards Baijnath road along with other Police officials. Around 5.50 p.m. the car was seen coming from Baijnath side. The car was stopped and the antecedents of accused-petitioners inquired into in the presence of the independent witness. The search of the car was conducted thereafter. A white coloured carry bag was recovered from its Dickey. On search of the said bag, black coloured substance in the shape of sticks was recovered. The I.O. on the basis of his experience found the same to be Charas. When weighed with electronic scale, it was found one kilogram. After resorting to the sampling and sealing process, the Charas recovered from the bag the accused-petitioners were carrying in the car was taken into possession. Both accused were arrested on the completion of the investigation on the spot on 5.5.2016 itself. They presently are in judicial custody. 3. The applications they filed for grant of bail on the ground that the investigating agency has failed to file the report under Section 173 of the code of Criminal Procedure within the statutory period of 60 days, they are entitled to be admitted on bail. On merits also, it was claimed that they are innocent and have not committed any offence and as such otherwise also entitled to be admitted on bail. 4. Learned Special Judge-III, Kangra at Dharamshala on hearing the parties and placing reliance on the case law as cited, has rejected the plea of the accused-petitioners for grant of default bail in terms of Section 167(2) of the Code of Criminal Procedure on the ground that the report under Section 173 of the Code of Criminal Procedure was filed against them on 29.7.2016. They were found to have lost their right for the grant of default bail the day when the report against them was filed by the Police. On merits, keeping in view the alleged recovery of one kilogram Charas from them, they were not held entitled to be admitted on bail. 5. The present is a case where the accused petitioners were arrested on 5.5.2016 in connection with a case registered against them under Section 20 of the Act. The present is a case of alleged recovery of Charas weighing one kilogram from the possession of the accused petitioners. In terms of the judgment of a Larger Bench of this Court in Ratto versus State of H.P. 2003 (2) Shim. L.C. 161 while determining the quantity under Section 2(vii-a) of the Act the commercial quantity would be greater than one kilogram. 6. Learned Additional Advocate General has urged with all vehemence that in terms of Section 2(vii-a) and also the notification No.S.O.1055(E), dated 19.10.2001, issued under the Act, the quantity of the recovered Charas one kilogram is commercial. Therefore, according to him when under Section 20 of the Act, in a case of commercial quantity, there is provision to undergo rigorous imprisonment for a period of ten years, which may extend to twenty years, it is a case where the report under Section 173 Cr.P.C., was required to be filed within 180 days. The same, according to Mr. Verma, has been filed well within the stipulated period i.e. on 29.7.2016. The present as such is stated to be not a case of indefeasible right of the accused petitioners to be admitted on bail nor, on merits, is he entitled to be admitted on bail. 7. I inclined to accept such submissions for the reason that a Larger Bench in Ratto’s case supra while interpreting the definition of ‘commercial quantity’ as provided under Section 2(vii-a) and also the notification issued under the Act has held that the commercial quantity would be the recovered contraband weighing greater than one kilogram. It is held so keeping in view the definition of commercial quantity detailed in Section 2(vii-a), which reveals that for the purpose of the Act in relation to narcotic drugs and psychotropic substances means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. In the Official Gazette viz the notification. It is held so keeping in view the definition of commercial quantity detailed in Section 2(vii-a), which reveals that for the purpose of the Act in relation to narcotic drugs and psychotropic substances means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. In the Official Gazette viz the notification. The Central Government though has notified Charas weighing one kilogram as commercial quantity, however, in view of the provisions contained under Section 2(vii-a) of the Act, commercial quantity should be greater than the one specified in the notification. It is in this backdrop in Ratto’s case supra, the Larger Bench of this Court has held that it is the statutory provisions which should prevail and not those in the notification. It has therefore, been held that the Charas weighing more than one kilogram falls within the ambit of commercial quantity. The present, therefore, is a case of recovery intermediate quantity of Charas viz more than smaller quantity, however, less than commercial quantity. In a case of this nature, there is provision of rigorous imprisonment, which may extend to ten years. 8. Now if coming to the provisions contained under Section 167(2) of the Code of Criminal Procedure, which provides for default bail, no Magistrate is authorized to detain the accused in custody for a total period extending 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days or sixty days, as the case may be, the accused person if prepared to furnish bail bonds has to be released on bail. 9. In the case in hand, both accused were arrested in connection with FIR No. 70/16 on 5.5.2016. They were produced before the Magistrate on the same day and remanded in judicial custody. The Magistrate or Special Judge, as the case may be, could have detained them in custody only upto sixty days and thereafter to release them on bail on furnishing bail bonds, on the failure of the investigating agency to file challan/report under Section 173 Cr.P.C. against them. Sixty days period in this case was over on 4th July, 2016. The Magistrate or Special Judge, as the case may be, could have detained them in custody only upto sixty days and thereafter to release them on bail on furnishing bail bonds, on the failure of the investigating agency to file challan/report under Section 173 Cr.P.C. against them. Sixty days period in this case was over on 4th July, 2016. The police, however, failed to file the challan against them till 29th July, 2016. The failure to file the challan within the statutory period of sixty days has accrued an indefeasible right in favour of the accused petitioners for being admitted on bail. 10. True it is that the applications for grant of bail were not filed by them immediately on the expiry of sixty days i.e. on 5.7.2016. The same were filed on 12.7.2016. The fact, however, remains that by that time also, the police has not filed the challan against them. The challan was filed on 29.7.2016, no doubt, during the pendency of the applications they filed for the grant of bail, however, in view of the law laid down by the apex Court in Uday Mohanlal Acharya versus State of Maharashtra, (2001)3 SCC, 142, followed by the apex Court in Sayed Mohd. Ahmed Kazmi versus State, 2013 AIR SC, 152, the filing of challan, after the filing of application for grant of default bail, should not be taken to defeat the right of the accused-petitioners to be admitted on bail in terms of Section 167(2) of the Code of Criminal Procedure. The judgment in Uday Mohanlal Acharaya’s case has further been discussed and relied upon by the apex Court in a recent judgment in Union of India versus Nirala Yadav, (2014)9 SCC, 457, which reads as follows: “46. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya’s case. The learned Judge dissented with the majority as far as interpretation of the expression “if not already availed of” by stating so:- “29. My learned brother has referred to the expression “if not already availed of” referred to in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression “availed of” does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. My learned brother has referred to the expression “if not already availed of” referred to in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression “availed of” does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In view of the several decisions referred to above and the requirements prescribed by clause (a)(ii) of the proviso read with Explanation I to Section 167(2) of the Code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 30. In this background, the expression “availed of” does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised.” On a careful reading of the aforesaid two paragraphs, we think, the two-Judge Bench in Pragyna Singh Thakur’s case has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi’s case. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi’s case which has based on three- Judge Bench decision in Uday Mohanlal Acharys’s case, we are obliged to conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakur’s case(which have been underlined by us) do not state the correct principle of law. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi’s case which has based on three- Judge Bench decision in Uday Mohanlal Acharys’s case, we are obliged to conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakur’s case(which have been underlined by us) do not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the decision in Union of India and others v. Arviva Industries India Limited and others.” 11. As a matter of fact, in the case before the apex Court also, the facts were more or less similar because the investigating agency has filed an application for extension of time to file the chargesheet against the accused after the expiry of the statutory period prescribed therefore and the application seeking bail in terms of Section 167(2) of the Code of Criminal Procedure filed by the accused. It has been held in this judgment by the apex Court that had the application for extension of time been filed prior to the expiry of the statutory period, the accused would have not entitled to the benefit of Section 167(2) Cr.P.C. The adjournment granted by the Magistrate in the application filed for grant of bail was held to be misconceived and it has been observed that as per the mandate of Section 167(2) of the Code, the Magistrate was obliged to have dealt with the application on the same day when it was filed. 12. The point in issue in these applications, therefore, is squarely covered in favour of the accused petitioners vide judgment supra for the reason that in this case also, the applications were filed on 12.7.2016. As per the mandate of Section 167(2) Cr.P.C., the same should have been decided either on that day or atleast on the next day, after having the version of the investigating agency also. Learned Special Judge, however, has delayed the disposal of the applications filed by the accused petitioners for grant of bail till 3rd August, 2016. As per the mandate of Section 167(2) Cr.P.C., the same should have been decided either on that day or atleast on the next day, after having the version of the investigating agency also. Learned Special Judge, however, has delayed the disposal of the applications filed by the accused petitioners for grant of bail till 3rd August, 2016. The challan which came to be filed in the meanwhile i.e. on 29.7.2016, cannot frustrate the indefeasible right of the accused-petitioners for being admitted on bail, on the failure of the investigating agency to file the challan within the stipulated period. Learned Special Judge has neither appreciated the given facts and circumstances nor the law applicable in its right perspective and has erroneously concluded that the accused petitioners are not entitled to the benefit of Section 167(2) Cr.P.C. 13. Anyhow, I extend the benefit of the provisions contained under Section 167(2) of the Code and order to release the accused-petitioners, on bail subject to their furnishing personal bonds in the sum of Rs.50,000/- each with one surety each in the like amount to the satisfaction of learned Special Judge, Kangra at Dharamshala. They shall further abide by the following conditions:- That they shall; a. regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Investigating Officer; d. not leave the territory of India without the prior permission of the Court. 14. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them; the Investigating Agency shall be free to move this Court for cancellation of the bail. 15. The observations hereinabove shall remain confined to the disposal of these petitions and have no bearing on the merits of the case. Both the applications stand disposed of.