CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner : Mr. Jitendra S. Singh, Advocate. For the State : Mr. Devesh Krishna, S.C.(M)-III.

06/ 05.09.2023 Heard Mr. Jitendra S. Singh, learned counsel appearing for the petitioner and Devesh Krishna, learned S.C.(M)-III for the State.

2. This petition has been filed for releasing the petitioner forthwith, in connection with Chandwa P.S. Case No. 147 of 2021, pending in the court of learned Special Judge, Latehar.

3. Mr. Jitendra S. Singh, learned counsel appearing for the petitioner submits that the final form has been submitted on 23.01.2022 and thereafter cognizance was not taken and in view of Sub-Section (2) of Section 309 of the Cr.P.C., the petitioner is entitled for bail, as the cognizance has been taken against the petitioner on 26.08.2022 and in view of that the petitioner was illegally kept in jail. He submits that this aspect of the matter has not been appreciated by the learned court and by the impugned order dated 12.08.2022, the bail of the petitioner has been rejected.

4. On the other hand Mr. Devesh Krishna, learned counsel appearing for the State submits that the learned court has already taken the cognizance against the petitioner on 26.08.2022 and there is only one Section of default bail, i.e. under Section 167(2) of the Cr.P.C. He submits that the stage of Section 309 Cr.P.C. was not reached at that time and the learned court has rightly passed the order. He relied in the case of Shintu Yadav Versus The State of Bihar through District Magistrate, Gaya, reported in 2017(1) PLJR 363, wherein the Division Bench of Patna High Court in paras-48, 49, 68 and 69, held as follows:-

[See: Jeevan Kumar Raut's case (supra)]

49. In short, on submission of charge sheet, a Magistrate is not denuded of its power to remand an accused to custody by virtue of his power under Section 167(2) of the Code.

However, once cognizance is taken, the remand, if any, would be pursuant to the Court's power under Section 309(2) of Patna High Court Cr. WJC No.305 of 2016 dt.18-10-2016 the Code unless a case falls for further investigation. [See: Rathin Dandapat's case (supra)]. Only for the reason of delay in taking cognizance, on the submission of the police report, an accused cannot claim his release either unconditionally or on bail. [See: Jeevan Kumar Raut's case (supra)].

68. In Manubhai Ratilal Patel Tr. Ushaben Vs. State of Gujarat , reported in (2013) 1 SCC 314, the Patna High Court Cr. WJC No.305 of 2016 dt.18-10-2016 Supreme Court, having referred to some of its earlier decisions, in Ram Narayan Singh v. State of Delhi , (AIR 1953 SC 277), B.R. Rao v. State of Orissa, ( AIR 1971 SC 2197), Kanu Sanyal v. District Magistrate, Darjeeling , (AIR 1973 SC 2684), and Sanjay Dutt v. State through C.B.I., Bombay (II), reported in (1994) 5 SCC 410, held that "any infirmity, in the detention of the Petitioner at the -3- initial stage, cannot invalidate the subsequent detention and the same has to be judged on its own merits." In Sanjay Dutt's case (supra), a Constitution Bench of the Supreme Court has held that a petition ─ seeking writ of habeas corpus, as to the illegality of detention or custody of an accused ─ has to be decided on the basis of legality or illegality of such detention as on „the date of return of the rule issued'. In other words, if on the date of return of the rule, the detention or custody is legal, a writ would not be issued to release the accused or any person in custody.

69. In short, therefore, a writ petition, seeking a writ of habeas corpus, has to be considered and decided in light of the legality or otherwise of such detention or custody as on the date of return of the rule issued upon presenting such writ petition before the Court."

5. Relying on this judgment, learned counsel appearing for the State submits that the petitioner, who is facing the trial under the NDPS Act is not entitled for bail.

6. In view of the above submissions of learned counsel appearing for the parties, the court finds that the learned court has been pleased to reject the said contention considering the judgment of Hon'ble Supreme Court in the case of Suresh Kumar Bhikamchand Jain Versus State of Maharashtra & Anr., reported in (2013) 3 SCC 77 and the learned court refers to para-18 of the said judgment.

7. Admittedly, the final form was submitted on 23.01.2022 and the learned court has taken the cognizance on 26.08.2022 and it has been pointed out by learned counsel appearing for the respondent-State that now the trial is proceeding and it is at evidence stage. In para-68 of the judgment of Division Bench of Patna High Court, the several judgments have been relied upon, wherein it has been held any infirmity, in the detention of the petitioner at the initial stage, cannot invalidate the subsequent detention and the same has to be judged on its own merits.

8. On submission of charge sheet, the Magistrate is empowered to remand an accused to custody by virtue of powers vested in him under Section 167(2) of the Code and it is only when he takes -4- cognizance that the stage of Section 309(2) of the Code is reached and till then, the remand of the accused can be legally continued by taking resort to the provisions embodied in Section 167(2) of the Code and that aspect has been held in para-48 of the judgment of the Division Bench of the Patna High Court in the case of Shintu Yadav (Supra).

9. In the case in hand, the cognizance has already been taken and the trial is going on, as such, the court finds that there is no illegality in the impugned order. As such, no relief can be extended to the petitioner. Accordingly, this petition is dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-