TMI Blog2015 (11) TMI 1900X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of the NDPS Act, the maximum detention period pending investigation can be extended to 180 days. The petitioner appears to be true while alleging that the investigating agency did not show the desired promptness in securing the FSL report of the samples sent on 16th and 23rd June, 2014 through special messenger. But then it cannot be overlooked that the Forensic Science Laboratory is not under the administrative control of Police Department and the delay in all probabilities occurred due to long queue of pending samples. The investigating agency therefore cannot be blamed entirely. Unfortunately, the learned Special Court has passed a totally casual order without elaborating the reasons which prompted it to grant extension to the prosecution to complete the investigation. In view of the fact that (i) the Additional Public Prosecutor was competent to apply for extension of time; (ii) such an application was moved before expiry of one hundred and eighty days' period; (iii) the extension was sought before the petitioner applied for his bail under Section 167(2) CrPC and (iv) the fact that no charge-sheet could be filed for want of FSL report as it would have led to rejection o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide India. It is further alleged that 6kg 780gm pseudoephedrine and 2kg diphenoxylage powder was recovered from his possession. 5. The petitioner was arrested on 04.06.2014. The period of 180 days of his maximum detention during the pendency of investigation expired on 01.12.2014. On that very day, Additional Public Prosecutor moved an application under proviso to Section 36-A(4) of the NDPS Act in which the Special Court issued notice to the petitioner for 02.12.2014. The petitioner then applied for the grant of statutory bail on 02.12.2014. The Special Judge vide a common order dated 05.12.2014 allowed the prosecution's application and granted extension to complete the ongoing investigation whereas the petitioner's bail application was dismissed. The said order is under challenge in the instant revision petition. CRM-M-6530-2015 (Narinder Kumar Goyal vs. State of Punjab) 6. This is the petitioner's second petition under Section 439 read with Section 167(2) of the Code of Criminal Procedure, seeking regular bail in the case FIR No. 92 dated 03.06.2014 registered under Section 21/22/25/25-A/27/27- A/29/61/85 of the NDPS Act read with Sections 25/54/59 of the NDPS Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory premises of Jagdish Singh @ Bhola. 12. We have heard learned counsel for the parties at a considerable length and gone through the record. 13. It requires no elaborate discussion that having regard to the legislative object behind enactment of Section 167(2) CrPC is to ensure that an accused person must not be in any circumstances, detained beyond ninety days pending investigation of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. 14. As regard to a person accused of an offence punishable under Sections 19, 24 or 27-A or for offences involving 'commercial quantity', in view of Section 36-A(4) of the NDPS Act, the maximum detention period pending investigation can be extended to 180 days. 15. The Special Court may further extend the period of retention upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond one hundred and eighty days. Sub-Section (4) of Section 36-A of the NDPS Act in this regard reads as follows:- (4) In respect of persons accused of an offence punishable under section 19 or section 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope of Section 167(2) as well as provisions like Section 20(4) of the TADA Act, 1987 which is pari materia to sub-Section (4) of Section 36-A of the NDPS Act. His compilation includes: (i) CBI, Special Investigation Cell-1, New Delhi vs. Anupam J. Kulkarni, (1992) 3 SCC 141; (ii) Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; (iii) Sanjay Dutt v. State through CBI Bombay, (1994) 5 SCC 410; (iv) Uday Mohanlal Acharya vs. State of Maharashtra, (2001) 5 SCC 453; (v) Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narcotic Control Bureau Anr., (2009) 17 SCC 631; (vi) Sayed Mohd. Ahmed Kazmi vs. State, GNCTD Ors., (2012) 12 SCC 1; (vii) Union of India through CBI vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 9 SCC 457; (viii) Banti vs. State of Punjab (CWP No. 2342 of 2014) decided on 04.09.2014; (ix) Gurwinder Singh vs. State of Punjab (CRM-M-20586-2014) decided on 24.06.2014; (x) Rashpal Singh vs. State of Punjab (CRM-M-11650-2014) decided on 07.04.2014; (xi) Sukha @ Sukhdev Singh vs. State of Punjab, CRR-3837-2014) decided on 18.12.2014; (xii) Nardev Inder Singh vs. State of Punjab (CRMM- 3339-2014) decided on 04.02.2014. 18. Learned State co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Mohanlal Acharya's case (supra), if the charge-sheet is filed after the accused has availed his right to seek bail under Section 167(2) CrPC, then his right cannot be frustrated or extinguished on the premise that meanwhile challan has been presented. 23. These principles have been reiterated by the Supreme Court in (i) Union of India vs. Hassan Ali Khan and Ors. (2011) 10 SCC 235, and (ii) Sayed Mohd. Ahmed Kazim's case (supra) as well except that Pragyna Singh Thakur vs. State of Maharashtra (2011) 10 SCC 445, records a note of discordant. 24. The later decision in Union of India through CBI vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 9 SCC 457 is indeed an encyclopaedia on the entire case law as it very eloquently delineates the ratio decidendi of all the cited decisions, before ruling that the decisions rendered by Constitution or larger Benches in Sanjay Dutt and Uday Mohanlal Acharya cases are the binding precedents. 25. It thus emerges from the cited case laws that (i) Section 167(2) CrPC read with Section 36-A(4) of the NDPS Act confers an indefeasible right in favour of an accused person to seek bail on expiry of 180 days if the investigation is stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the NDPS Act. Its Section 2(xxix), however, says that words and expressions used herein and not defined but defined in the Code of Criminal Procedure, 1973 (2 of 1974) have the meanings respectively assigned to them in that Code . 30. Section 2(u) of Code of Criminal Procedure defines Public Prosecutor to mean any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor . Section 24(3) of the Code says that for every District, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the District and such Public Prosecutor or Additional Public Prosecutor for one District can be appointed for another District as well. From the combined reading of both the provisions of the Code, it stands established beyond any doubt that the expression Public Prosecutor includes Additional Public Prosecutor also. The application moved by the Additional Public Prosecutor in the instant case was thus very much maintainable. 31. As regard to the question whether there existed valid grounds for the Special Court to extend the period for completion of the investigation, each case has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u) is not entitled to the benefit of Section 167(2) CrPC. His revision petition is accordingly dismissed. This order shall, however, cause no prejudice to the petitioner's prayer for bail on merits, if he applies for the same. Narinder Kumar Goyal's case 34. Adverting to the second case (Narinder Kumar Goyal), we find that the petitioner's claim for the grant of bail under Section 167(2) CrPC is totally misconceived and misdirected. He was arrested on 17.06.2014. The period of 180 days expired on 14.12.2014. He applied under Section 167(2) CrPC for bail under the wrong impression that the charge-sheet was filed on 24.12.2014 i.e. much after expiry of one hundred and eighty days' period. He then withdrew the application under Section 167(2) CrPC as noticed by learned Special Judge, Patiala in his order dated 24.12.2014, obviously on realizing the fact that the said Court had vide an earlier order dated 05.12.2014 granted 30 days' additional time to further investigate the matter and the challan was presented on 24.12.2014 well within that extended period. 35. So far as the petitioner's (Narinder Kumar Goyal) claim to release him on regular bail under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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