116 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.49515 of 2013 in/and [CASE NUMBER] Date of decision: December 11, 2013 [ENTITY] and another Petitioners Versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr.[ENTITY], Advocate for the applicants-petitioners. Mr.[ENTITY], Standing Counsel for the respondent-[ENTITY]. [ENTITY], J.
The application is allowed, subject to all just exceptions. [CASE NUMBER] This petition has been filed under Section 439 [ACT] for grant of regular bail to the petitioners in case FIR No.276 dated 13.10.2012 under [SECTION] of the NDPS Act, registered at Police Station Industrial Area, Chandigarh.
Learned counsel for the petitioners contends that the petitioners were arrested on 13.10.2012 and after expiry of 180 days, [CASE NUMBER] an application under [SECTION] [ACT] has been filed on 12.04.2013 but the Court instead of granting the petitioner bail under [SECTION] [ACT], fixed it for reply. In the meantime, prosecution filed application for extension of time for presentation of challan on 23.04.2013 and extension was given on 26.04.2013 and the bail application was dismissed. It is also contended by learned counsel for the petitioners that the challan was presented on 24.04.2013, before the extension of time granted by the Court.
Learned State counsel opposed the bail application. I have gone through the record and have heard learned counsel for the petitioners and learned State counsel.
From the record, I find that there is no dispute regarding the dates as argued by learned counsel for the petitioners. The petitioners were arrested on 13.10.2012 and after expiry of 180 days, an application under [SECTION] [ACT] was filed on 12.04.2013. At that time, neither any application for extension of time was pending nor the challan was presented in the Court. The prosecution filed the application for extension of time on 23.04.2013, the challan was presented on 24.04.2013 and the Court extended time by 10 days vide order dated 26.04.2013 and the bail application was dismissed.
From the facts and circumstances, it is clear that on 12.04.2013, when the application was filed under [SECTION] [ACT], already 180 days have expired and the accused were having statutory indefeasible right to get the bail. At that time neither any [CASE NUMBER] application for extension was pending nor the extension was given by the Court. Rather, the challan was presented on 24.04.2013 as per zimini orders placed on the record, whereas the extension was granted later on 26.04.2013.
Therefore, from the above, I find that petitioners are entitled to benefit of bail under [SECTION] [ACT] as on the day of filing of the application, 180 days have already expired and challan was not presented by the prosecution and the petitioners were ready to furnish the bail bonds. The indefeasible right accrued to the petitioner on the filing of the application under [SECTION] [ACT] The Hon'ble Supreme Court in [PRECEDENT], has held that if the investigation is not completed within 180 days, the Court is empowered to authorize detention, which may go upto one year provided that the conditions i.e. a report of the public prosecutor, which indicates the progress of the investigation; specific and compelling reasons for seeking the detention of the accused beyond the period of 180 days; and after notice to the accused, are satisfied. The accused has acquired the indefeasible right to get the bail as held by the Hon'ble Supreme Court in [PRECEDENT], that when investigation is not completed and challan is not put-up within 180 days under [ACT] read with [SECTION] [ACT], if the accused applies for [CASE NUMBER] release on bail, this right is enforceable by accused only from the time of default till the filing of challan. This right does not survive on the challan being filed. In other words, the Hon'ble Supreme Court has held that if the challan has been filed after the stipulated period and no application is filed, then the accused has no right to be released on bail i.e. if the application is filed after presentation of challan and not before presentation of challan, then the accused has no right. This position has again been reiterated by the Hon'ble Supreme Court in [PRECEDENT] in which it is stated that if charge-sheet is not filed within the period stipulated in [SECTION] [ACT], the accused gets an indefeasible right to get bail. The accused must be held to have availed this right when he filed bail application. Subsequent filing of challan will not extinguish the right of the accused to get bail. This citation also fully applies in the present case. Further, in [PRECEDENT], the Hon'ble Supreme Court has held that if charge-sheet is not filed within the period stipulated in [SECTION] [ACT], the accused gets statutory right of release on bail. However, where no application was filed for bail on expiry of 90 days and charge-sheet came to be filed, the accused loses his right of statutory bail and can thereafter, only apply for regular bail.
In view of law laid down by the Hon'ble Supreme Court, the present petition is allowed. The petitioners are ordered to be [CASE NUMBER] released on regular bail on furnishing bail bonds in the sum of `50,000/- with one surety in the like amount each to the satisfaction of trial Court/Duty Magistrate, Chandigarh.
December 11, 2013 ([ENTITY]) [ENTITY] JUDGE To be referred to the Reporters or not? Yes