Crl.M.No.16308-M of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.M.No.16308-M of 2010 Date of Order: 20.8.2010 Taj Mohammad .....Petitioner Vs. State of Punjab .....Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Navjit Singh, Advocate for the petitioner. Mr. Gaurav Garg Dhuriwala, AAG, Punjab. JASWANT SINGH, J Prayer in the present petition under Section 439 Cr.P.C is for grant of regular bail to the petitioner in case FIR No.236 dated 16.11.2009 under Section 15 of the NDPS Act, P.S. Payal, Police District Khanna, District Ludhiana. Allegations against the petitioner are that the petitioner-driver was intercepted by the police while driving his Tata Vehicle Color Green bearing No.PB-13F-2098 at Bus Stand Timberwal at 2.30 a.m. It is further alleged that two bags of poppy husk totalling 70 kgs were recovered from his possession and he was arrested from the spot on 16.11.2009 itself. It is stated that since the challan was not filed within 180 days of the date of arrest, an application was instituted by the petitioner-accused on 17.5.2010 for grant of bail under Section 167(2) Cr.P.C. The stand of the prosecution was that a request in writing had been moved on 20.5.2010 by the Investigating Officer requesting for extension of 15 days time for Crl.M.No.16308-M of 2010 #2# presentation of the challan. Learned trial Court vide its order dated 21.5.2010 granted the extension of 15 days and dismissed the bail application of the petitioner for non-filing of the challan within the stipulated time. Learned counsel for the petitioner argued that in view of the provisions under Section 167(2) Cr.P.C read with provisions of Section 36- A(4) of the NDPS Act, the petitioner is entitled to grant of bail in spite of the fact that the recovery of contraband was of commercial quantity as admittedly the challan was not filed within 180 days of the arrest of the petitioner on 16.11.2009. It was further submitted that giving of the reason that the police authorities were busy in V.I.P Duties was not sufficient to provide the basis of invoking the proviso to Sub Section (4) of Section 36-A of NDPS Act for extending the period of presentation of challan beyond the period of 180 days. In support of his contention, reliance was placed on a judgment of this court reported as Iqbal Singh v. State of Punjab 2005(4) RCR (Criminal) 663. Learned state counsel on the other hand has argued that the recovery is of commercial quantity and the period for presentation of challan in terms of proviso to Sub Section (4) of Section 36-A of NDPS Act was rightly extended by the ld. Trial Court. He, however, concedes that the period of 180 days from the date of arrest of the petitioner expired on 14.5.2010 and the challan in the present case was not filed within the stipulated period. He further concedes that the application by the petitioner- accused was instituted on 17.5.2010 under Section 167(2) Cr.P.C whereas the prosecution has moved an application for extension of 15 days time on 20.5.2010. Crl.M.No.16308-M of 2010 #3# After giving my anxious thought to the rival submission of the learned counsel for the parties, I find that there is merit in the plea raised on behalf of the petitioner. It cannot be disputed that in terms of the provisions of Section 167(2) Cr.P.C read with Section 36-A (4) of the NDPS Act, the challan was required to be presented by the prosecution within 180 days of the arrest of accused-petitioner. It is also not in dispute that the provisions of Section 37 of the NDPS Act prohibiting grant of bail in case of seized contraband being of commercial quantity do not override the provisions of grant of bail under Section 167(2) Cr.P.C. It is also not in dispute that in view of proviso to Sub Section (4) of Section 36-A of the NDPS Act, learned Special Court could extend the period beyond 180 days upto one year if it was not possible to complete the investigation within the stipulated period of 180 days provided that there is a report of Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of 180 days. It is also not disputed that it is a settled preposition of law that if the challan is not put up within the period stipulated under Section 167(2) Cr.P.C, the accused gets an indefeasible right to get bail on the application made in that regard and the subsequent filing of challan does not frustrate or extinguish the benefit of right available under Section 167(2) Cr.P.C as the same is based on statutory provisions and not on the question as to whether there is prima facie case against an accused or the offence being of serious nature (Refer to Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR (Crl.) 452 (SC) ). In the present case, it is not in dispute that the petitioner was arrested on 16.11.2009 and the challan was not presented within the period Crl.M.No.16308-M of 2010 #4# of 180 days, which expired on 14.5.2010. It is also not in dispute that the application seeking release of bail was made by the petitioner under Section 167(2) Cr.P.C read with Section 36-A (4) of the NDPS Act after the expiry of 180 days and thereafter S.I Kulbir Singh, Incharge of Police Post, Malout moved an application on 20.5.2010 seeking for extension of 15 days time for presentation of the challan. Therefore the inevitable conclusion in view of above discussion is that the petitioner is entitled to be released on bail under Section 167(2) Cr.P.C. Even otherwise there being no application by the Public Prosecutor and before the expiry of stipulated period of 180 days and the reasons for extensions not being germane, no application for extension could be entertained and allowed in view of the unequivocal wordings of the proviso to Sub Section 4 of Section 36-A of the NDPS Act. In view of the above, prayer is accepted and the petitioner is directed to be released on bail to the satisfaction of the Chief Judicial Magistrate, Ludhiana. August 20, 2010 ( JASWANT SINGH ) manoj JUDGE