CRM-M-23287-2011 (O&M) [ 1 ] ::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-23287-2011 (O&M) Date of Decision:13.10.2011 Surinder Kumar @ Sindha ...Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Veneet Sharma, Advocate, for the petitioner. Mr. J.S.Brar, AAG, Punjab. **** Rakesh Kumar Jain, J. This is a petition for grant of regular bail in a pending trial case registered vide FIR No.499 dated 18.10.2008, under Sections 21, 22, 29 of the NDPS Act and 379, 411, 489-A, 489-B and 489-C of the IPC, at police Station Sadar, Amritsar. On a secret information about the petitioner of being a smuggler in heroin and fake currency, the aforesaid FIR was registered and in a raid conducted pursuant thereto, the petitioner was allegedly arrested with 2 Kgs of heroin. Learned counsel for the petitioner has submitted that he was arrested on 18.10.2008 and the challan was presented before the learned Additional Chief Judicial Magistrate, Amritsar on 04.04.2009. In this regard, he has referred to the order dated 04.04.2009 passed by the said Court, which reads as under: “Present: APP for the State. Challan presented today. It be registered. As per remand papers of accused Surinder Kumar in Jail, other accused be also summoned. Their production CRM-M-23287-2011 (O&M) [ 2 ] ::::::: warrant for 06.04.2009.” Thereafter, the case remained pending in the court of Additional Chief Judicial Magistrate, Amritsar and it was only on 27.01.2011 the said Court realized its mistake that the challan was to be submitted to the Court of Special Judge for the purpose of trial. It is alleged that on 27.01.2011, the following order was passed by the Additional Chief Judicial Magistrate, Amritsar: “It has been brought to my notice that challan in question is not maintainable in this Court and same was required to be submitted before the Court of Special Judge, Amritsar for trial. As such, challan in question is ordered to be returned to APP for the State for presenting the same immediately before the Court of Ld. Special Judge, Amritsar. Accused, who is in custody be produced before the Court of Ld. Special Judge, Amritsar today itself. Ahlmad is directed to return the file complete in all respect to the Ld. APP for the State immediately against receipt.” It is alleged that the learned Special Judge refused to accept the file which was allegedly presented by the ASI after having been returned to him by the APP as ordered on 27.01.2011. Thereafter, on 31.01.2011, the learned Sessions Judge, Amritsar sent the file to the Court of learned Special Judge, Amritsar and also asked for the comments of the Additional Chief Judicial Magistrate, Amritsar. The petitioner then applied for bail under Section 439 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C”] before the learned Special Judge, Amritsar who had also made a reference of the aforesaid fact in its order as undisputed facts but had dismissed the bail application vide its order dated 03.05.2011 in view of Section 37 of the NDPS Act on the ground that the recovery of heroin is of commercial quantity. Learned counsel for the petitioner has submitted that the petitioner has remained in custody for a period of about 2 years 4 months without there being any trial as he was arrested on 18.10.2008 and his case was put up before the learned Special Judge, Amritsar on 31.01.2011. He further submits that the CRM-M-23287-2011 (O&M) [ 3 ] ::::::: petitioner could not have been detained in custody by the Additional Chief Judicial Magistrate, Amritsar not being a Special Judge, for more than 15 days in view of Section 36A of the NDPS Act and nothing has been shown by the learned State counsel that the Court of ACJM has been notified as a Special Court in terms of Section 36 of the NDPS Act. He further submits that although the challan was presented on 167th day from the date of arrest of the petitioner, i.e. on 04.04.2009 but it was not presented in terms of Section 173 (2)(i) of the Cr.P.C. before the Magistrate empowered to take cognizance and was presented before the Special Judge for the first time on 31.01.2011 when the case was put up before him in terms of the order passed by the learned Sessions Judge, Amritsar, therefore, it is argued that in terms of Section 36A(4) of the NDPS Act, the petitioner is entitled for bail. It is further argued that it is a hard case in which the petitioner is confined in custody for over a period of 2 years and 4 months i.e. from the date of his arrest till the presentation of his file before the Competent Court without there being any trial, therefore, he deserves the concession of bail. Learned counsel for the petitioner has relied upon two judgments of this Court in the case of Sukhwinder Singh @ Chhinda v. State of Punjab, 1996(1) R.C.R. (Criminal) 390 and in the case of Bhupinder Singh v. State of Haryana, 1994(2) R.C.R (Criminal) 302. Learned State Counsel has argued that the petitioner does not deserve the concession of bail in view of the recovery of narcotics from him which falls within the definition of commercial quantity. I have heard both the learned counsel for the parties and perused the record with their able assistance. The facts are not much in dispute as the petitioner was arrested on 18.10.2008 and was produced before the learned Additional Chief Judicial Magistrate, Amritsar before whom the challan was presented on 04.04.2009, whereas the case is admittedly triable by the Special Judge. The file remained pending before the learned Additional Chief Judicial Magistrate, Amritsar till 27.01.2011 when he realized his mistake and returned the file as it is to the Assistant Public Prosecutor observing that the challan before his Court was not maintainable and hence the challan was presented for the first time before the learned Special Judge on 31.01.2011. CRM-M-23287-2011 (O&M) [ 4 ] ::::::: In Sukhwinder Singh @ Chhinda's case (supra) and in Bhupinder Singh's case (supra), it was held by this Court that all offences under the NDPS Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government and where a person accused of or suspected of the commission of an offence under the NDPS Act is forwarded to a Magistrate, such Magistrate is authorized to detain such a person for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate. The Magistrate at any time, before expiry of the period of detention, shall order such person to be forwarded to the Special Court having jurisdiction who would deal with that person in terms of Section 167 of the Cr.P.C. In both the aforesaid cases, bail was granted by this Court on the ground that the petitioners in those case were found to be in illegal custody. In the present case, the petitioner was arrested and brought before the learned Additional Chief Judicial Magistrate who was not designated as a Special Court as nothing has been brought before this Court in this regard and who could order for detention of the petitioner not exceeding 15 days i.e. upto end of October, 2008 and after expiry of the said date, he was supposed to forward the petitioner to the Special Judge but the petitioner remained in detention despite the expiry of 15 days from the date of his arrest and even challan was presented before the learned Additional Chief Judicial Magistrate on 04.04.2009 which was not the competent Court to take cognizance as provided under Section 173(2) of the Cr.P.C. Ultimately, realizing its mistake, the Court of Additional Chief Judicial Magistrate returned the case file to the Assistant Public Prosecutor to be presented before the Competent Court and in this process, the petitioner had already suffered detention of more than 2 years and 4 months without there being any trial. If Section 36A(4) of the NDPS is to be considered, even then the challan is not deemed to have been presented within 180 days or even for a period of one year as per its proviso as the Court competent to take cognizance was the Court of Special Judge before whom the file was presented alongwith the challan on 31.01.2011 after expiry of 2 years CRM-M-23287-2011 (O&M) [ 5 ] ::::::: 4 months. Keeping in view the facts and circumstances of the case and despite the fact that the alleged recovery is of commercial quantity, I have found it to be a fit case for grant of bail. Hence, the present petition is hereby allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds alongwith two heavy local sureties to the satisfaction of the learned Trial Court who is also at liberty to impose any suitable condition to ensure presence of the petitioner during trial. October 13, 2011 ( Rakesh Kumar Jain ) vinod* Judge