Crl.Rev.No.951 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.Rev.No.951 of 2010 Date of decision: 16.9.2010. Mushtaq Ahmad Darr ....................Petitioner v. State of Punjab .....................Respondent Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.RP Dhir,Advocate for the petitioner. Mr.Gaurav Garg Dhuriwala,AAG Punjab. Jaswant Singh.J. Present revision petition is directed against the order dated 10.3.2010 passed by the learned Additional Sessions Judge, Hoshiarpur whereby the bail application of the accused-petitioner in case FIR No.237 dated 27.8.2009, PS Sadar, Distt.Hoshiarpur, under Section 167(2) Cr.PC has been declined. Briefly, the facts are that on 27.8.2009 at 5.30 am, petitioner accused Mushtaq Ahmad Darr alongwith his two co-accused were intercepted and apprehended by the police party while travelling in a truck No. JK-2R-2687 for being in possession of 1304 kilograms of poppy husk contained in 44 bags. In view of the proviso to sub section (2) of Section 167 Crl.Rev.No.951 of 2010 2 Cr.PC read with Section 36(A)(4) of the NDPS Act which ordains that the person accused under the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act) is entitled to be released on bail if the challan is not presented within 180 days the petitioner accused moved an application on 24.2.2010 under Section 167(2) Cr.PC with the allegation that challan having not been filed on expiry of the stipulated 180 days right had accrued to him for being released on bail. The prosecution in their reply stated that there was a delay of two days in presenting the challan and hence on such presentation the right of the petitioner to seek bail had extinguished. It was further stated that in the bail application the petitioner had not mentioned that they were ready to furnish bail bonds and surety bonds. It was further stated that the accused did not deserve the concession of bail in view of heavy recovery of contraband. Learned Additional Sessions Judge considered the law cited on behalf of the accused as well as the prosecution. The learned Court noticed the factual matrix that the bail application was filed on 181st day i.e. 24.2.2010 and the challan was presented on 182nd day i.e. 25.2.2010 and the application for extension of time by the Public Prosecutor was filed on 3.3.2010 ( in terms of proviso to Section 36(A) (4) of the NDPS Act). It was further found that the facts of the present case were akin to that of the case in Siya Ram v. State of UT, 2009(1) RCR 58, wherein it was held that for possession of 11 kg. 500 grams Crl.Rev.No.951 of 2010 3 of charas the petitioners were not entitled for grant of bail after filing of challan though the stipulated period of 180 days had expired. The Court also observed that in view of Section 37 of the NDPS Act, the petitioner was not entitled to the concession of bail as no such grounds were made out to believe that the accused is not guilty of having committed offence under Section 15 of the Act. This view, it appears was adopted by following the ratio of the judgment in Rasheed and others v. State of Karnataka, 2008(1) Recent Criminal Reports 48, wherein it was held by the Hon'ble Karnataka High Court that provisions of special enactment i.e. NDPS Act shall override the provisions of Cr.PC, wherever provisions of Cr.PC are contrary to the provisions of NDPS Act. Thus the bail was declined and hence the present revision petition. Learned counsel for the petitioner has argued that if the challan is not presented within stipulated period of 180 days in a NDPS case, the accused in view of provisions of Section 167(2) Cr.PC gets indefeasible right to get bail which cannot be defeated or extinguished by subsequent filing of the challan during the pendency of the bail application. In support he cited the judgment of Hon'ble the Supreme Court in Bhupinder Singh and others v. Jarnail Singh, 2006 (3) Recent Criminal Reports 677, Uday Mohan Lal Acharya v. State of Maharashtra 2001 (2) Recent Criminal Reports 452. It was further argued that provisions of Section 37 of the NDPS Act relating to grant Crl.Rev.No.951 of 2010 4 of bail do not over ride the provisions of Section 167 (2) Cr.PC, as had been held by a Full Bench of this Court in Janta Singh v. State of Punjab 1996(1) Recent Criminal Reports 1, and followed by this Court in Ramesh Kumar v. State of Haryana 1999 (1) RCR 162. On the other hand the learned State counsel has not disputed the proposition of law relied upon by the counsel for the petitioner but, by relying on the affidavit of Mr.Harinder Pal Singh Parmar, DSP (R)Hoshiarpur has submitted that the petitioner accused had filed an application under Section 167(2) Cr.PC read with Section 36(A)(4) of the NDPS Act, before the expiry of 180 days and therefore, the same was not maintainable, and hence the claim for grant of compulsory bail on expiry of 180 days cannot be sustained. He cites State of M.P. v. Rustam and others, 1995 Supp(3) SCC 221. Having heard learned counsel for the parties at length and perusing the pleadings, this Court is persuaded to accept the plea raised on behalf of the learned State counsel. Before adverting to the merits of the case, it would be advantageous to notice the undisputed propositions of law cited in the present case. A three Judges' Bench of the Hon'ble Supreme Court by majority (2:1) in Uday Mohan's case (supra) after considering the entire case law held that on the challan having not been presented before the Court within the stipulated period of filing the same, the Crl.Rev.No.951 of 2010 5 accused on the expiry of such period could file an application alongwith offering to furnish bail as directed before the presentation of the challan is vested with an indefeasible right to get bail. The said right does not get extinguished by filing of the subsequent challan. In Rustam's case (supra) the Hon'ble Supreme Court has decided the issue as to how the computation of 60/90 days is to be done. It has been held that for computation of clear 60/90 days either first day of the production of the accused before the learned Magistrate is to be excluded or the date on which the charge sheet was filed will be included after considering the provisions of Sections 9 and 10 of the General Clauses Act. The relevant para 3 of the same reads as under:- “3. We find that the High Court was in error-- both in the matter of computation of the period of 90 days prescribed as also in applying the principle of compulsive bail on entertaining a petition after the challan was filed as the so- called “in-defeasible right” of the accused, in our view stood defeated by efflux of time. The prescribed period of 90 days, in our view, would instantly commence either from 4-9- 1993 (excluding from it 3-9-1993) or 3-12- 1993 (including in it 2-12-1993). Clear 90 days have to expire before the right begins. Plainly, Crl.Rev.No.951 of 2010 6 put, one of the days on either side has to be excluded in computing the prescribed period of 90 days. Sections 9 and 10 of the General Clauses Act warrant such an interpretation in computing the prescribed period of 90 days. The period of limitation thus computed on reckoning 27 days of September, 31 days of October and 30 days of November would leave two clear days in December to compute 90 days and on which date the challan was filed, when the day running was the 90th day. The High Court was, thus, obvious in error in assuming that on 2-12-1993 when the challan was filed, period of 90 days had expired” (emphasis supplied). The Hon'ble Supreme Court in Uday Mohanlal's case (supra) in para 12 recorded their following conclusions:- “1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in Crl.Rev.No.951 of 2010 7 the whole. 2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible Crl.Rev.No.951 of 2010 8 right alleged to have accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been custody for the period of 90 days or 60 days, as specified and no charge sheet has bee filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub- section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be Crl.Rev.No.951 of 2010 9 unauthorized and, therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression 'if not already availed of' used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub- section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same” (emphasis supplied). It is not in dispute that the judgment rendered by the Hon'ble Supreme Court in Rustam's case (supra) regarding the Crl.Rev.No.951 of 2010 10 computation of 60/90 days as mentioned in para 3 of the judgment was not overruled in Uday Mohan's case (supra) and the same continues to hold the ground. The next question raised in the present petition by the State is that the application for grant of bail under Section 167 Cr.PC was filed by the accused petitioner before the expiry of 180 days. It would be relevant to reproduce the reply filed by Sh.Harinder Pal Singh Parmar, Deputy Superintendent of Police ( R) Hoshiarpur by way of his affidavit dated 24.8.2010. The relevant para 2 and 3 of the preliminary submissions are as under:- “2. That the petitioner in this case was arrested on 27.8.2009 when he was found in possession of 1304 kgs of poppy husk. His police remand was taken on 28.8.09. Consequently, 180 days prescribed under Section 167 of Cr.P.C. Sub- section 2 read with Section 36-A Sub Section 4 of the N.D.P.S. Act expired on 25.2.2010. The challan in this case was submitted on 25.2.2010. The petitioner filed the application under Section 167 of Cr.P.C. Sub section 2 read with Section 36(A) sub section 4 of N.D.P.S.Act on 24.2.2010 i.e. on the date when the 180 days as prescribed by Section 167 of Crl.Rev.No.951 of 2010 11 Cr.P.C. Sub section 2 read with Section 36(A) sub section 4 of the N.D.P.S.Act had not expired. The application could have only been filed on 25.2.2010. 3. That from the plain reading of section 167 of Cr.PC sub section 2, it is clear that the limitation of presentation of challan would start running only from the time when the Magistrate authorises the detention of the accused in custody which is 28th August,2009 and the calculation of the limitation would start from 29th of August, 2009 till 180 days as stipulated by Section 167 of Cr.PC sub section 2 read with Section 36(A) sub section 4 of the N.D.P.S.Act expired. Resultantly, three days were to be counted in the month of August with 30 days in September, 31 days in October, 30 days in November, 31 days in December , 31 days in January and 24 days in February as 180 days elapsed on 24th February,2010. Consequently Section 167 of Cr.PC sub section 2 read with Section 36(A) sub section 4 of the Crl.Rev.No.951 of 2010 12 N.D.P.S.Act should have only been filed on 25th of February,2010 and the filing of application on 24th February 2010 was prior in time when the 180 days had not expired.” The factual position asserted on behalf of the State by way of affidavit of Sh.Harinder Pal Singh Parmar, DSP (R ) Hoshiarpur was not controverted by filing any counter or otherwise at the time of arguments though manner of calculation was sought to be disputed. It is thus, evident that from the accused petitioner recovery of 1304 kilograms of poppy husk contained in 44 bags was effected when they were intercepted in a truck and were arrested and FIR dated 27.8.2009 was lodged under Section 15 of the N.D.P.S.Act. It is not disputed that the petitioner accused was presented before the learned Magistrate and granted police remand on 28.8.2009. It is also not disputed that in terms of Section 167(2) Cr.PC read with Section 36(A) (4) of NDPS Act, accused petitioner filed bail application on 24.2.2010 and challan was presented on 25.2.2010 and further that Section 167(2) Cr.PC read with Section 36(A)(4) of the NDPS Act ordains that challan has to be presented within stipulated 180 days. If the period is computed as per the law settled in Rustam's case (supra), the stipulated period of 180 days for filing the challan has to be reckoned w.e.f. 28.8.2009 i.e. the day when the accused was presented before the learned Magistrate and was remanded Crl.Rev.No.951 of 2010 13 to police custody. Still further, this date of 28.8.2009 has to be excluded and the date of presentation of challan i.e. 25.2.2010 is to be included. Thus, it emerges that on 25.2.2010 when the challan was presented it was 181st day and the 180 days expired on 24.2.2010. It is also not disputed that factually the petitioner had filed bail application on 24.2.2010 i.e. before the expiry of 180 days since 180 days were to expire at the end / midnight of 24.2.2010, therefore, it can safely be concluded that bail application under Section 167 Cr.PC was premature since it could be only filed after expiry of clear 180 days so as to claim any right. In such circumstances, in my opinion, the claim for grant of bail by the accused/petitioner under Section 167 Cr.PC cannot be entertained. Dismissed. 16.9.2010 (Jaswant Singh) joshi Judge