Crl. Misc. No. M-35502 of 2011 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-35502 of 2011 Date of Decision: December 16, 2011 Rajwinder Singh …..Petitioner Vs. State of Punjab …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.A.S. Sullar, Advocate for the petitioner. Mr.P.S. Bajwa, DAG, Punjab. -.- M.M.S. BEDI, J. (ORAL) Petitioner seeks the concession of regular bail claiming right under Section 167 (2) Cr.P.C. in a case of recovery of 150 kg of poppy husk being carried by the petitioner and his co-accused Rakesh Kumar on April 2, 2011. The petitioner was arrested on April 2, 2011. The period of 180 days for presentation of challan prescribed under the law expired on October 1, 2011. Claiming that an indefeasible right had accrued to the Crl. Misc. No. M-35502 of 2011 [2] petitioner to be released on bail, an application under Section 167 (2) Cr.P.C. was filed by the petitioner on October 4, 2011. After notice of the said application was issued to the State, the prosecution agency filed an application on October 7, 2011 for extension of time under Section 36 A (4) of the NDPS Act for extension of time to complete the investigation and present the challan. The said application has been dismissed vide order dated October 12, 2011 by the Special Judge, exercising powers under the NDPS Act. I have heard counsel for the petitioner and gone through the application filed by the prosecution agency for extension of time to present challan. One of the reasons in the application is that one pistol with .315 bore alongwith one live cartridge was also recovered from the petitioner regarding which a sanction under Section 39 of the Arms Act is required to be obtained from the District Magistrate, Sri Muktsar Sahib. Extension was sought in order to enable the prosecution agency to seek sanction from District Magistrate. The said application appears to have been allowed by the Court vide order dated October 12, 2011, annexure P-1 while dismissing the application of the petitioner under Section 167 (2) Cr.P.C. observing that the said petition had become infructuous. I have considered the orders dated October 12, 2011. It is a settled principle of law as laid down by the Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra, AIR 2001 SC 1910 laying down that if the challan is not presented within the period stipulated in Section 167 (2) Cr.P.C. accused gets an indefeasible right to get bail and that subsequent Crl. Misc. No. M-35502 of 2011 [3] filing of challan during the pendency of the bail application will not extinguish an indefeasible right of an accused to get bail. In the present case in the light of provisions of Section 167 (2) Cr.P.C. read with Section 36 A (4) of the NDPS Act, challan was required to be filed within 180 days by the prosecution agency as it was not filed, the petitioner had exercised his right under Section 167 (2) Cr.P.C. on October 4, 2011. Section 36 A (4) of the NDPS Act reads as follows:- “Section 36 A (4): In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27 A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”; provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” No doubt, on the basis of the powers conferred in the Court under Section 36 A (4) of the NDPS Act as mentioned above, the Special court can extend the period of presentation of challan beyond 180 days on Crl. Misc. No. M-35502 of 2011 [4] an application of Public Prosecutor indicating the progress of the investigation and the specific reason for detention of the accused beyond a period of 180 days. The Apex Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau, 2009 (17) SCC 631 has observed that in application for extension of time under Section 36 A (4) of the NDPS Act, the investigating officer is required to specifically mention the progress of the investigation and the compelling reasons which are required for extension of custody beyond 180 days. A notice is also required to be issued to the accused before allowing such application for extension of custody. In the present case, no reason was given for extension of custody for offence under Section 15 of the NDPS Act but reason had been given for extension of custody for not presentation of challan under Section 25 of the Arms Act. There was no bar for the prosecution agency to present challan against the petitioner for offence under Section 25 of the Arms Act before the Magistrate on expiry of 60 days by segregating the allegations under Section 25 of the Arms Act. Without expression of any opinion whether the prosecution agency could have presented separate challan under Section 25 of the Arms Act after obtaining sanction under the Arms Act, it is sufficient to observe that indefeasible right had accrued to the petitioner on October 1, 2011 when he filed an application under Section 167 (2) Cr.P.C. on expiry of period of 180 days. The application under Section 167 (2) Cr.P.C. was filed by the petitioner on October 4, 2011. After October 1, 2011, an Crl. Misc. No. M-35502 of 2011 [5] indefeasible right had accrued to the petitioner to be released on bail, the said right could not have been defeated by the prosecution agency by filing an application on October 7, 2011 under Section 36 A (4) of the NDPS Act. It is not disputed that the provisions of Section 167 (2) Cr.P.C. are applicable to the offence under the NDPS Act. In view of above circumstances, the petitioner deserves to be released on bail as indefeasible right has been accrued to him to be released on bail as challan had not been filed by October 1, 2011. Petition is allowed. Petitioner is ordered to be released on bail under Section 167 (2) Cr.P.C. on his furnishing bail bonds/ surety bonds to the satisfaction of the Special Judge. December 16, 2011 (M.M.S.BEDI) sanjay JUDGE