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2020 DIGILAW 654 (HP)

Krishna @ Kiran v. State of Himachal Pradesh

2020-09-28

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, Judge : By way of this petition, the petitioner has prayed for setting aside order dated 02.03.2020, passed by the Court of learned Special Judge (II), Shimla in Bail Application No. 12-S/22 of 2020, titled as Krishna alias Kiran Vs. State of Himachal Pradesh, vide which, the bail application filed by the petitioner under Section 167(2) of the Code of Criminal Procedure has been dismissed. 2. Brief facts necessary for the adjudication of present petition are that the petitioner herein filed an application under Section 167(2) of the Code of Criminal Procedure for grant of bail before the Court of learned Special Judge (II), Shimla in FIR No. 29/2019, dated 06.02.2019, registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 201 of the Indian Penal Code at Police Station Sadar, Shimla. The contention of the petitioner before the learned Special Judge was that she was arrested in the said FIR on 05.07.2019 and was produced before the Court on 06.07.2019. The charge-sheet was filed within 180 days. The period of 180 days from the production of the petitioner in the Court was over on 02.01.2020. Thereafter, the case was listed on 29.01.2020 for scrutiny of documents, when the prosecution filed a supplementary charge-sheet in the case before the learned Court below, copies whereof were supplied to the petitioner. According to the petitioner, the period of investigation under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as =the NDPS Act') was subject to Sub-section (4) of Section 36A of the NDPS Act. The factum of filing of supplementary charge-sheet on 29.01.2020 by the prosecution demonstrated that the first charge-sheet was incomplete, meaning thereby that investigation in the matter continued even after the period of 180 days of incarceration of the petitioner, as provided in Section 36A of the NDPS Act and, therefore, the petitioner was entitled to be released on bail under Section 167(2) of the Code of Criminal Procedure. According to the petitioner, as investigation continued beyond the period of 180 days without permission of the learned Trial Court, as was mandatory under the provisions of Section 36A of the NDPS Act, therefore, she was entitled to be released on bail under Section 167(2) of the Code of Criminal Procedure. 3. This application stands dismissed by the learned Special Court vide order dated 02.03.2020. 3. This application stands dismissed by the learned Special Court vide order dated 02.03.2020. While dismissing the application, learned Court has held that in the case in hand, FIR was registered on 06.02.2019 and the accused was arrested on 06.07.2019. The challan, complete in all respects, was filed 03.08.2019 alongwith the report of S.F.S.L. Learned Court held that the report of the Chemical Examiner was also filed alongwith the challan, which meant that the investigation with regard to NDPS offences was complete within the prescribed period. Learned Court also held that vide supplementary challan, police had filed the report of voice sample and, thus, added Section 201 of the Indian Penal Code. By relying upon the judgment of the Hon'ble Supreme Court in Cr. Appeal N. 478-479 of 2017, titled as Vinubhai Haribhai Malaviya Vs. The State of Gujrat, decided on 16.19.2019, learned Trial Court held that the bail application of the accused was devoid of any merit and accordingly, the same was dismissed. 4. Feeling aggrieved, petitioner has filed the present petition. 5. Learned counsel for the petitioner has argued that the order passed by the learned Court below, vide which, the application of the petitioner for grant of bail under Section 167(2) of the Code of Criminal Procedure has been rejected, is not sustainable in the eyes of law, as learned Special Court has erred in not appreciating that as a complete charge-sheet was not filed by the prosecution within the period stipulated under the NDPS Act, the petitioner was entitled to be released on bail under Section 167(2) of the Code of Criminal Procedure in light of the judgment delivered in similar circumstance by the Hon'ble High Court of Punjab and Haryana at Chandigarh in Gurpal Singh and another Vs. State of Punjab, CR.R. No. 791 of 2016, decided on 23rd April, 2016. State of Punjab, CR.R. No. 791 of 2016, decided on 23rd April, 2016. Learned counsel has argued that as NDPS Act is a Special Act, therefore, once there was a breach of the provisions contained in Section 36A of the said Act, as complete challan was not filed without the permission of learned Trial Court, then the petitioner was entitled for grant of bail under Section 167(2) of the Code of Criminal Procedure and denial of the same by the learned Special Court is a result of complete misreading of the statutory provisions as well as the law declared by the Hon'ble High Court of Punjab and Haryana. He has further argued that benefit of Section 173(8) of the Code of Code of Criminal Procedure cannot be given to the prosecution, as the field is covered by the provisions of Section 36A (4) of the NDPS Act. On these bases, he has prayed for setting aside the order dated 02.03.2020, passed by the learned Special Judge and release of petitioner under Section 167(2) of the Code of Criminal Procedure. 6. The petition has been resisted by the State on the ground that there was no infirmity with the order passed by the learned Court below rejecting the bail application filed by the petitioner under Section 167(2) of the Code of Criminal Procedure, because the challan in terms of the provisions of Section 36A, harmoniously read with Section 173 of the Code of Criminal Procedure, stood filed by the prosecution within the stipulated period and simply because a supplementary challan was filed thereafter, the same did not confer any right upon the petitioner to claim bail under Section 167(2) of the Code of Criminal Procedure, as it is completely wrong to assume on the part of the petitioner that simply because a supplementary challan was filed later on, therefore, the initial challan was incomplete. Learned Additional Advocate General has argued that the judgment of Hon'ble Punjab and Haryana High Court is not applicable in the facts of this Case and even otherwise, the same is not binding on this Court. Learned Additional Advocate General has argued that the judgment of Hon'ble Punjab and Haryana High Court is not applicable in the facts of this Case and even otherwise, the same is not binding on this Court. He has further submitted that the provisions of the NDPS Act are being completely misread and misinterpreted by the petitioner and therefore also, the petition is liable to be dismissed, because no right stands conferred upon the petitioner to be released on bail under Section 167(2) of the Code of Criminal Procedure, simply because a supplementary challan has been filed by the prosecution, for which, there was no need to seek any leave of the Court. On these points, he has prayed that the bail petition be dismissed. 7. I have heard learned counsel for the parties and have also gone through the pleadings. 8. Section 36-C of the NDPS Act reads as under: ?36C. Application of Code to proceedings before a Special Court. Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.? Sub-section (4) of Section 36A and proviso thereto read as under: ?36A(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references 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 eighty 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.? 9. A perusal of Sub-section (4) of Section 36A thus demonstrates that this statutory provision provides that ?ninety days? referred to in Section 167 (2) of the Code of Criminal Procedure are to be construed as ?one hundred and eighty days? 9. A perusal of Sub-section (4) of Section 36A thus demonstrates that this statutory provision provides that ?ninety days? referred to in Section 167 (2) of the Code of Criminal Procedure are to be construed as ?one hundred and eighty days? as far as persons 250 accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity booked under the NDPS Act are concerned. 10. At this stage, it is necessary to refer to certain provisions of Section 167 of the Code of Criminal also. Section 167(2) of the Code of Criminal Procedure, inter alia, provides that the Magistrate to whom an accused person is forwarded under this Section may, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, provided that the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the policy, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so. The provision further provides that no Magistrate shall authorise the detention of the accused person in custody under the said paragraph of Section 167(2) for a total period exceeding 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. 11. Now, the period of ?90 days?, as it finds mention in Section 167(2) of the Code of Criminal Procedure has been construed to refer to ?180 days? in Sub-section (4) of Section 36A of the NDPS Act. The proviso thereto further contains that if it is not possible to complete the investigation within the period of 180 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 180 days. 12. Coming to the facts of this case, according to the petitioner, she was arrested on 05.07.2019 and was produced before the Court on 06.07.2019 and the charge-sheet was also filed within the period of 180 days. 12. Coming to the facts of this case, according to the petitioner, she was arrested on 05.07.2019 and was produced before the Court on 06.07.2019 and the charge-sheet was also filed within the period of 180 days. Her case is that as on 29.01.2020, when the matter was listed before the learned Special Judge for scrutiny of documents, as a supplementary chargesheet was filed by the prosecution, therefore, it had to be construed that investigation was not completed within 180 days, conferring upon the petitioner the right to be released on bail under Section 167(2) of the Code of Criminal Procedure, as no permission was sought by the prosecution to investigate the matter beyond the period of 180 days. 13. The contention of the petitioner that this charge-sheet cannot be stated to be a complete charge-sheet, is based upon the judgment of Hon'ble High Court of Punjab and Haryana in Gurpal Singh's case (supra), wherein the Hon'ble High Court has held as under: ?………...13. It is true that in the given case, certain documents which are formal in nature, if not accompanied with the report/charge-sheet may not change the nature of report/charge-sheet contemplated under Section 173(2) and (5) of the Code particularly when material is sufficient for the Magistrate to take cognizance of the offence as per provisions of the Code. However, in the instant case, the Chemical Analyser's report is the basis for deciding whether substance which is seized during raid is Ganja or not, which would determine whether provisions of the Narcotic Drugs and Psychotropic Substances Act are attracted or not. The Magistrate in such situation undoubtedly cannot proceed to take cognizance of the offence for want of complete charge-sheet/report and, therefore, in the present case, the charge-sheet/report which is submitted by the Police in the Court on 04.08.2001 cannot be said to be a charge-sheet/report as contemplated under Section 173(5) of the Code. 14. There is another dimension to the issue in question. In the given set of circumstances, Police may submit a charge-sheet in the Court though incomplete, but within a stipulate period as contemplated under Section 167(2) of the Code, i.e., sixty days or ninety days, if all the relevant documents are filed in the Court as contemplated under Section 173(5) of the Code, in that event, the accused cannot seek bail in view of provisions of Section 167(2) of the Code. However, in the instant case, Chemical Analyser's report was filed in the Court beyond the period of ninety days, i.e., on 9.11.2001 and, therefore, prosecution in the present case cannot taken any advantage in this regard. It is needless to mention that if the Police fails to file charge-sheet/report contemplated under Section 173 of the Code within the stipulated period of sixty days or ninety days, a right is accrued to the accused to seek release on bail and Court in such situation are expected to dispose of such applications forthwith without granting time to prosecution to fill up the lacuna. 15. In the instant case, the Trial Court ought to have disposed of forthwith the application of the applicants whereby release was sought in view of provisions of Section 167(2) of the Code, without granting further time to the prosecution. In any case, prosecution, in the instant case, did not file all material documents within the stipulated period and, therefore, report/charge-sheet which is filed by the prosecution is not in conformity with Section 173(5) of the Code. The applicants, in my opinion, are entitled to be released on bail since prosecution failed to file charge-sheet/report within the stipulated period as contemplated under Section 167(2) of the Code.? Following the judgment of Apex Court in Satya Narain Musadi's case (supra) which has been followed by the High Court of Andhra Pradesh in Matchumari China's case (supra), and by Calcutta High Court in Raghubirsaran Jain and another Vs. State and another, 1995 Crl. L.J. 4117, I am of the considered opinion that the petitioners herein should have been released, in peculiar circumstances of this case, as indefeasible right had accrued to them under Section 167(2) Cr.P.C. on presentation of incomplete challan without the report of chemical examiner and the prosecution agency having not availed the benefit of Section 36A(4) of the NDPS Act within a period of 180 days. In a case under the NDPS Act, a right of bail under Section 167(2) Cr. P.C. of an accused can be defeated by the prosecution agency by availing the remedy under Section 36A(4) of the NDPS Act subject to the fulfillment of the statutory requirement of Section 36A(4) of the NDPS Act which is to be considered in each case on individual merits by the concerned trial Court/Special Judge. The right under Section 167(2) Cr. P.C. of an accused can be defeated by the prosecution agency by availing the remedy under Section 36A(4) of the NDPS Act subject to the fulfillment of the statutory requirement of Section 36A(4) of the NDPS Act which is to be considered in each case on individual merits by the concerned trial Court/Special Judge. The right under Section 167(2) Cr. P.C. cannot be defeated by merely filing an incomplete challan. It is pertinent to observe here that all observations made in this judgment are in context to the offences under the NDPS Act.? 14. In my considered view, the contention of the petitioner that she is entitled to be released on bail under the provisions of Section 167(2) of the Code of Criminal Procedure, because supplementary charge-sheet stood filed by the State without the leave of the Court beyond 180 days, is without any merit. It is not in dispute that the charge-sheet stood filed by the prosecution within 180 days, as it is the admitted case of the petitioner herself. 15. A perusal of the judgment passed by the High Court of Punjab and Haryana demonstrates that what weighed with the Hon'ble Court while ordering the release of the accused therein under Section 167(2) of the Code of Criminal Procedure was that the Chemical Analyser's report was not appended with the earlier charge-sheet and as per the Hon'ble Court, because it was Chemical Analyser's report, on the basis of which, it could have been deciphered as to whether the seized substance was Ganja or not, which would determine whether the provisions of the NDPS act were attracted or not, the Magistrate in such situation could not proceed to take cognizance of the offence for want of complete charge-sheet. 16. I will leave the matter as it stood decided by the Hon'ble High Court of Punjab and Haryana at this stage itself and proceed. In the case in hand, it is not the contention of the petitioner that Chemical Analyser's report was not a part of the initial charge-sheet. Further, a perusal of the order passed by the learned Court below demonstrates that by way of supplementary charge-sheet, all that was intended by the prosecution to place on record was a voice sample for the purpose of addition of Section 201 of the Indian Penal Code. Further, a perusal of the order passed by the learned Court below demonstrates that by way of supplementary charge-sheet, all that was intended by the prosecution to place on record was a voice sample for the purpose of addition of Section 201 of the Indian Penal Code. That being so, by no stretch of imagination, it could be said that the earlier charge-sheet/challan filed by the prosecution was purportedly incomplete so as to enable learned Special Court to take cognizance. 17. At this stage, it is relevant to refer to the judgment of Hon'ble Supreme Court in Abdul Azeez P.V. and others Vs. National Investigation Agency JT 2014(13) SC 10, in which, Hon'ble Court in para-4 has been pleased to held as under: ?4. Having gone through the charge-sheet, we are not persuaded to take a different view. The materials adverted to show that it was a final report on the facets investigated into by the investigating agency. Furthermore, the requisite sanctions as required under Sections 18 and 18A of the UAPA and so also under Section 7 of the Explosive Substances Act were also accorded by the concerned authorities. The chargesheet so filed before the learned Special Court was complete in all respects so as to enable the learned Special Court to take cognizance in the matter. Merely because certain facets of the matter called for further investigation it does not deem such report anything other than a final report. In our opinion Section 167(2) of Cr. P.C. stood fully complied with and as such the petitioners are not entitled to statutory bail under Section 167(2) of Cr. P.C.? 18. One another important aspect of the matter, which this Court would like to dwell upon at this stage is that the provisions of Section 36A(4) as well as proviso thereto are being indeed misread and misinterpreted by the petitioner. In my considered view, Sub-section(4) of Section 36A only makes conditions imposed under Section 167(2) of the Code of Criminal Procedure, entitling an accused for grant of bail if the investigation is not completed within the period prescribed therein, more stringent. Not only this, the proviso further confers upon the prosecution the right to seek time from the Special Court up to one year by fulfilling the ingredients of the proviso. Not only this, the proviso further confers upon the prosecution the right to seek time from the Special Court up to one year by fulfilling the ingredients of the proviso. The proviso is attracted in the eventuality when, indeed, no chargesheet is filed in 180 days, as contemplated under Section 36A(4) of the NDPS Act. The proviso has no applicability when a charge-sheet has already been filed within the period of 180 days. Thereafter, in case the prosecution intends to file a supplementary charge-sheet, it can always do so under Section 178(8) of the Code of Criminal Procedure, as said provisions are deemed to be applicable in offences to be tried under the NDPS Act/ proceedings to be held by the Special Court in terms of Section 36C of the NDPS Act. 19. Therefore, in view of the above discussion, as this Court does not find any merit in the present petition and further as this Court finds no infirmity in order dated 02.03.2020, passed by the Court of learned Special Judge(II), Shimla in Bail Application No. 12-S/22 of 2020, this petition is dismissed, so also pending miscellaneous applications, if any.