Judgment:
Criminal Misc. No.M-15042 of 2014 /1/ IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-15042 of 2014 Date of Decision: July 08, 2014 Sanjiv Kumar .......Petitioner Versus State of Punjab .......Respondent CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Present Mr.SK Jain, Advocate for the petitioner. Mr.KS Sidhu, Deputy Advocate General, Punjab. <><><> TEJINDER SINGH DHINDSA, J.
This order shall dispose of the instant petition filed under Section 167(2) of the Code of Criminal Procedure read with Section 36-A (4) of Narcotic Drugs and Psychotropic Substances Act (for short 'the Act'), praying for the grant of regular bail to the petitioner in case FIR No.82 dated 11.10.2013, under Section 22 of the Act, registered at Police Station Bareta, District Mansa.
2. The petitioner was arrested on 11.10.2013 and as per prosecution version, an alleged recovery of 1,15,200 tablets of Alprazolam was effected from him as also co-accused, namely, Vijay Kumar.
3. Learned counsel for the parties have been heard at length. Malik Sushama Rani 2014.07.10 16:48 I attest to the accuracy and integrity of this document Criminal Misc. No.M-15042 of 2014 /2/ 4. 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.
5. 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 parimateria 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 Malik Sushama Rani 2014.07.10 16:48 I attest to the accuracy and integrity of this document Criminal Misc. No.M-15042 of 2014 /3/ 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.
6. Adverting back to the facts of the present case, since the challan had not been presented within a period of 180 days from the date of arrest, the petitioner filed an application under Section 167(2) of the Code of Criminal Procedure for bail on 15.4.2014. On the other hand, the investigating agency moved an application dated 10.4.2014 under Section 36-A of the Act seeking extension of time for presentation of the challan. Vide order dated 22.4.2014, the trial Court granted extension of time for a period of six weeks for completion of investigation. Vide order of even date i.e. 22.4.2014, the trial Court dismissed the bail application filed by the petitioner on the basis that extension in time for completion of investigation had already been granted.
7. In the considered view of this Court, there has been 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 for seeking the detention of the accused beyond a period of 180 days. In the present case, the trial Court has granted extension of time by merely noticing that report of the Forensic Science Laboratory is yet awaited. Such order has been passed in a routine and mechanical fashion.
8. Under such circumstances, the statutory right that had accrued to the petitioner on the expiry of 180 days under Section 167(2) of the Code of Criminal Procedure from the date he had Malik Sushama Rani 2014.07.10 16:48 I attest to the accuracy and integrity of this document Criminal Misc. No.M-15042 of 2014 /4/ been taken into custody could not have been defeated even if subsequent thereto the challan has been furnished. A reference in this regard may be made to the decision of the Hon'ble Supreme Court of India in “Sayed Sayed Mohd. Ahmed Kazmi v. State, GNCTD and others”., 2012 (4) RCR (Criminal) 875.
9. For the reasons recorded above, the petitioner is held entitled to the benefit of regular bail. Petition is allowed.
10. The petitioner be enlarged on bail subject to the satisfaction of the trial Court.
11. Disposed of. ( TEJINDER SINGH DHINDSA ) July 08, 2014 JUDGE SRM Note: Whether to be referred to Reporter?. (Yes/No) Malik Sushama Rani 2014.07.10 16:48 I attest to the accuracy and integrity of this document