TaxTMI 
TaxTMI 
2015 (11) TMI 1900
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....l Area at Tahliwala, District Una (HP). He is stated to be a Non-Resident Indian. 4. The petitioner is one of the accused 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 Arms Act at Police Station, Pasiana, District Patiala. The petitioner is alleged to have been manufacturing and smuggling narcotic drugs as well as making illegal supply of the 'controlled substances' like pseudoephedrine within and outside 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....
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....of 10.06.2009 U/S 8&22 of NDPS Act 05.01.2015 4. Sessions Case No.3 of 23.5.2014 FIR No.45 dated 27.03.2014 U/S 120-B IPC and Section 7,8,13(1)(d) read with Section 13(2) of PC Act, 1988, PS Mataur 07.08.2015 11. On the other hand, learned State counsel contended that the petitioner is a close associate of Jagdish Singh @ Bhola who is the kingpin of drug mafia. He is also a co-accused with Jagdish Singh @ Bhola in a case of recovery of 25kg Methamphetamine (ICE) registered by NCB, Mumbai. The petitioner is stated to be the expert in making ICE and he was allegedly doing so in the 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....
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....d or other considerations though may be relevant while granting or refusing bail on merits but are alien to the scheme of Section 167(2) CrPC; (vi) since the petitioner availed of his right to grant statutory bail and applied on 02.12.2014, it was imperative upon the Special Court to release him on bail; (vii) the application for grant of extension was moved by prosecution with mala fide intention. In fact, the application was at the behest of SHO-cum-IO and not by the Public Prosecutor who is expected to apply his mind independently being an officer of the Court. 17. Learned counsel for the petitioner (Varinder Sandhu) cited a catena of decisions interpreting the meaning and scope 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) Sanja....
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....49 which read as follows:- "48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The 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 applicati....
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.... filed, the so- called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra (supra)." (emphasis applied) 22. It may thus be seen that in view of dictum in Uday 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....
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....k advantage of the expiry of 180 days, for on the date of such expiry itself, the Additional Public Prosecutor applied for extension of time. The notice of that application was also duly given to the petitioner. The principles laid down in Hitendra Vishnu Thakur and Sanjay Dutt cases have thus been complied with. It is not a case where the Additional Public Prosecutor applied for extension of time after the expiry of 180 days or as a counter-blast to the petitioner's application under Section 167(2) CrPC. 29. So far as the petitioner's plea that only the Public Prosecutor could apply for extension of time to complete the investigation and not the Additional Public Prosecutor is concerned, it is undeniable that the expression "Public Prosecutor" has not been defined under 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 directio....
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....e 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. 33. Be that as it may, 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 of the charge-sheet itself, we are of the considered view that the petitioner (Varinder Sandhu) 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 und....