CRM No. M 14796 of 2010 1 v. State of Punjab

Mr. Surinder Garg, Advocate for the petitioner (CRM M 14796 of 2010) Mr. R K Girdhar, Advocate for the petitioner (CRM M 15145 of 2010) Mr. P S Bajwa, DAG, Punjab for the respondent -.- Whether Reporters of local papers may be allowed to see the judgement? To be referred to the Reporter or not? Whether the judgement should be reported in the Digest?

3. Nirmaljit Kaur, J. (Oral) This order shall disposed of both the aforesaid petitions as these have arisen out of the same FIR. Both these petition have been filed under Section 439 of Code CRM No. M 14796 of 2010 2 of Criminal Procedure read with section 167(2) Cr.P.C. seeking grant of bail to the petitioners in FIR No. 178 dated 03.11.2009 under Sections 15, 61, 85 of NDPS Act, 1985, registered at Police Station Sadar Malout, District Muktsar. It is contended that a total 120 kgs. poppy husk was recovered from the two accused/petitioners. The petitioners were arrested on

03.11.2009 and were produced before the Illaqa Magistrate on 04.11.2009. In this manner, the challan was to be presented up to 02.05.2010 i.e. within a stipulated period of 180 days. When the challan was not presented by

02.05.2010, an application under Section 167(2) Cr. P.C. was moved for releasing the petitioners on bail, in which, notice of motion was issued for

06.05.2010. No challan was filed up to 06.05.2010 but an application was moved by the prosecution for extension of time of the investigation. In stead of granting bail to the petitioners under section 167 (2) Cr.P.C., the Magistrate allowed the application of the prosecution for extension of time and dismissed the bail application of the petitioners under Section 167 (2) Cr.P.C. vide order dated 06.05.2010. Reliance is placed on the judgment rendered by the Apex Court in the case of Sanjay Kumar Kedia alias Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and another reported as 2010 (3) C.C. Cases(SC)73. Learned State counsel, however, while opposing the bail application submitted that as per the judgment rendered by the Karnatka High Court in the case of Rasheed and others v. State of Karnatka reported as 2008(1)RCR(Criminal) 48, the Special Court can extend the period up CRM No. M 14796 of 2010 3 to one year and Section 36-A of Narcotic Drugs and Psychotropic Substances Act, overrides the provisions of Code of Criminal Procedure. Thus, the petitioners cannot be released on bail. Moreover, the petitioners have not co-operated during the investigation and the Registration Certificate of the Car in question is yet to be recovered from them. Learned counsel for the parties are heard. The Apex Court in the case of Sanjay Kumar Kedia (supra), in a similar situation, wherein, the application moved by the Investigating Officer and not through the Public Prosecutor, while referring to the case of Hitendra Vishnu Thakur and others V. State of Maharashtra and others (1994 (4) 602) in para 12 observed as under:- “12. The court further went on to say that even if the application for extension of time was either rooted through the public prosecutor or supported by him would not make the said application a report of the public prosecutor.” In the present case also, the said application was moved by the SHO concerned for extension of time and not through the Public Prosecutor Further, in Sanjay Kumar Kedia's case (supra), while releasing the applicant on bail for offence punishable under Narcotic Drugs and Psychotropic Substances Act, 1985 after the expiry of the maximum period of filing of challan, the Hon'ble Apex Court has noted the facts that the first application seeking extension of time for filing the challan showed that it did not indicate the progress of investigation nor any compelling circumstances which required for extension of time beyond 180 days and the second application for extension of time was granted by a cryptic order CRM No. M 14796 of 2010 4 and without notice to the issue. In such circumstances, it was held that the extension of time granted to the Investigating Officer under the provisions of Section 36-A of the Code of Criminal Procedure did not specify the conditions laid down therein and accordingly, directed the release of the petitioner on bail. Hon'ble the Supreme Court in paras 17, 18 and 20 of the said judgment further went on to hold that:- “17. As would appear from what has been held above we must now deal with the order of the Special Judge dated 13th February, 2008 whereby the application for bail filed by the appellant under the default clause had been dismissed. The special Judge observed that as the Supreme Court had rejected the prayer for bail on 4th February, 2008 and that the period of investigation had been extended on two occasions and that the complaint had been filed before the last extended date had expired and having regard to the facts of the case in as much that the allegations were serious, the appellant was not entitled to bail. The High Court while noticing the decision in Hitendra Vishnu Thakur's case (supra) has deviated from its observation and side stepped the very categorical directions given by this Court, on wholly irrelevant considerations.

18. With great respect, these findings do no justice to the observations of this court in Vishnu Thakur's case as the very specific observations therein have been noticed and ignored by the Division Bench.

20. We accordingly allow this appeal, set aside the order of Special Judge dated 13th February 2008 and High Court dated 5th September, 2008 and direct that the appellant be released on bail. In the present case, an application for extension of time was CRM No. M 14796 of 2010 5 moved by the SHO concerned on 06.05.2010 i.e. much after the expiry of the stipulated period for filing of the challan and also after the receipt of the notice in the bail application filed by the petitioners under Section 167(2) Cr.P.C. Application for extension of time which was moved on 06.05.2010 was allowed on the same date while also dismissing the bail application of the petitioners by the same order i.e. on 06.05.2010. The application under Section 36A (4) of the Act praying for extension of time did not satisfy the conditions laid therein. Therefore, defeating the much valuable right which had accrued to the petitioners. In view of the above, both the petitions are allowed and the petitioners are ordered to be released on bail to the satisfaction of the trial Court. A copy of the order be placed on the connected case. November 22, 2010 (Nirmaljit Kaur) Judge