Punjab-Haryana High Court
Sonu vs State Of Haryana on 30 January, 2023
CRR-221-2023 -1-
102
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-221-2023
Date of decision : 30.01.2023
Sonu
...Petitioner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Johan Kumar, Advocate for the petitioner.
Mr. Rajneesh Chadwal, AAG, Haryana.
****
VIKAS BAHL, J. (ORAL)
Challenge in the present Criminal Revision is to the order dated
11.01.2023, vide which, an application filed by the petitioner under Section
167(2) of Cr.P.C. for default bail in FIR No.321 dated 07.07.2022 registered
under Section 22C/29/61/85 of the NDPS Act, at Police Station Kheri Pul,
Faridabad, has been dismissed.
Learned counsel for the petitioner has submitted that the
petitioner was taken in custody on 07.07.2022 and the challan in the present
case was filed on 30.09.2022 and the said challan was an incomplete challan
inasmuch as the FSL report was not attached with the same. It is further
submitted that a period of 180 days for submitting the complete challan
elapsed on 03.01.2023 and no extension of time was sought by the
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prosecution as per the provisions of Section 36(a)(4) of the NDPS Act. It is
contended that the petitioner had filed the present application under Section
167(2) of Cr.P.C. for default bail on 09.01.2023 and it is thereafter, on
11.01.2023, (as is apparent from page 38 of the paper book) that the FSL
report has been filed by the prosecution.
Learned counsel for the petitioner has submitted that as per the
law laid down by the Hon'ble Supreme Court in "M. Ravindran Vs. The
Intelligence Officer, Directorate of Revenue Intelligence", reported as
2021(2) SCC 485, it is the date of the application filed by the petitioner
under the proviso to 167(2) Cr.P.C. which is to be considered in order to
determine the rights accruing to the petitioner and once the
petitioner/accused files an application for bail under proviso to Section 167
(2) Cr.P.C., then he is deemed to have 'availed of' or enforced his right to
be released on default bail and no subsequent event would extinguish the
said right.
Learned counsel for the petitioner has placed reliance upon the
Division Bench judgment of this Court in CRR-4659-2015 titled s "Ajit
Singh @ Jeeta and another Vs. State of Punjab", to contend that a challan
presented without the FSL report cannot be considered to be a complete
challan and thus, in view of the provisions of the NDPS Act, the petitioner
would be entitled to default bail in case the FSL report is not submitted
along with the challan and the period for submission of the same has
elapsed and the petitioner has moved an application under Section 167(2)
Cr.P.C. prior to the submission of the FSL report after such lapse of time. It
is also contended that in view of the conflict of opinion on the said point,
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the matter was referred to a Division Bench and has further relied upon a
judgment dated 18.11.2020 passed in CRR No.1135 of 2020 titled as
"Suresh Vs. State of Haryana" in which a Coordinate Bench of this Court,
after considering the entire aspect, was pleased to release the
petitioner/accused therein on conditional bail with the clarification that in
case the legal point is held against the petitioner/accused therein, the State
would be at liberty to seek cancellation/ modification of the order, if
warranted at that stage. It is contended that the impugned order has not
taken into consideration the said important aspects and thus, deserves to be
set aside.
Learned State counsel, on the other hand, has opposed the
present revision petition and has submitted that although, the dates and the
facts as stated by learned counsel for the petitioner are not being disputed
but has submitted that a perusal of impugned order would show that the
Additional Sessions Judge, Faridabad had taken into consideration the
judgments including judgment in the case of Shankar Vs. State of Haryana,
reported as 2020 CRiLJ 2979 as well as judgment in the case of Narindra
Kumar Amin Vs. Central Bureau of Investigation and others, reported as
2015(3) SCC 417 and other judgments on the point that even in case, the
FSL report has not been submitted along with challan and the same has not
been done within a period of 180 days, then also, petitioner was not entitled
for grant of default bail under Section 167(2) of Cr.P.C. as once, challan has
been submitted then, the right of the petitioner to seek default bail elapses.
Learned counsel for the petitioner, in rebuttal, has stated that
the judgment of the Hon'ble Supreme Court in Narindra Kumar Amin's
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case (Supra) was with respect to case not under the NDPS Act whereas, on
the other hand, the judgment of the Division Bench of this Court in Ajit
Singh @ Jeeta's case (supra) has been passed after specifically considering
the provisions of the NDPS Act and it has been held therein that a challan
without the FSL report cannot be considered to be a complete challan.
This Court has heard learned counsel for the parties and has
gone through the paper-book.
The facts of the present case are not in dispute. Challan in the
present case had to be presented within a period of 180 days from
07.07.2022. On 30.09.2022, the challan was presented however, FSL report
was not attached with the same and thus, the same was an incomplete
challan. After a lapse of a period of 180 days, the petitioner moved the
application under Section 167(2) of Cr.P.C. for default bail on 09.01.2023.
Till the filing of the application dated 09.01.2023, the FSL report had not
been presented before the Court and same was submitted/presented in the
Court on 11.01.2023. No application for extension of time in accordance
with the provisions of Section 36(a)(4) of the NDPS Act was filed by the
prosecution's side. The Additional Sessions Judge, Faridabad, had primarily
rejected the present application on the point that even in case, the FSL
report has not been filed along with challan then also, the petitioner would
not be entitled to grant of default bail.
In the background of the above-said admitted facts and
circumstances, this Court is of the opinion that the following two issues
would arise in the present case:-
(i) Whether the right of the petitioner would be seen & ascertained
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after taking into consideration the date of the filing of the said
application i.e., 09.01.2023 or the date when the order was
passed by the Additional Sessions Judge, Faridabad on
11.01.2023 i.e., after the FSL report had been submitted on
11.01.2023?
(ii) Whether the presentation of report under Section 173(2) Cr.P.C.
by the police without the report of Chemical examiner/Forensic
Science Laboratory amounts to an incomplete challan and thus,
entitling the accused to grant of default bail which has been
filed after the lapse of 180 days and the extended period
granted?
With respect to the first question, the Hon'ble Supreme Court
of India in M. Ravindran's case (supra), has held as under: -
"xxx xxx xxx xxx xxx xxx
9. Thus the points to be decided in this case are:
(a) Whether the indefeasible right accruing to the appellant
under Section 167(2) Cr.P.C. gets extinguished by subsequent filing of
an additional complaint by the investigating agency;
(b) Whether the Court should take into consideration the time of
filing of the application for bail, based on default of the investigating
agency or the time of disposal of the application for bail while
answering (a).
xxx xxx xxx xxx xxx xxx
18. Therefore, in conclusion:
18.1 Once the accused files an application for bail under the
Proviso to Section 167(2) he is deemed to have 'availed of' or enforced
his right to be released on default bail, accruing after expiry of the
stipulated time limit for investigation. Thus, if the accused applies for
bail under Section 167(2) Cr.P.C. read with Section 36A(4), NDPS Act
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upon expiry of 180 days or the extended period, as the case may be, the
Court must release him on bail forthwith without any unnecessary
delay after getting necessary information from the public prosecutor,
as mentioned supra. Such prompt action will restrict the prosecution
from frustrating the legislative mandate to release the accused on bail
in case of default by the investigative agency.
18.2 The right to be released on default bail continues to remain
enforceable if the accused has applied for such bail, notwithstanding
pendency of the bail application; or subsequent filing of the
chargesheet or a report seeking extension of time by the prosecution
before the Court; or filing of the chargesheet during the interregnum
when challenge to the rejection of the bail application is pending
before a higher Court.
18.3 However, where the accused fails to apply for default bail
when the right accrues to him, and subsequently a chargesheet,
additional complaint or a report seeking extension of time is preferred
before the Magistrate, the right to default bail would be extinguished.
The Magistrate would be at liberty to take cognizance of the case or
grant further time for completion of the investigation, as the case may
be, though the accused may still be released on bail under other
provisions of the Cr.P.C.
18.4 Notwithstanding the order of default bail passed by the
Court, by virtue of Explanation I to Section 167(2), the actual release
of the accused from custody is contingent on the directions passed by
the competent Court granting bail. If the accused fails to furnish bail
and/or comply with the terms and conditions of the bail order within
the time stipulated by the Court, his continued detention in custody is
valid.
19. Hence the impugned judgment of the High Court stands set
aside and the Trial Court judgment stands confirmed. However, we
additionally direct that apart from furnishing the sureties as directed
by the Trial Court, the Appellant-accused should also surrender his
passport, undertake to report to the Respondent Directorate when
required for purposes of investigation, and also undertake to not leave
Chennai city limits without the leave of the Trial Court. This should
alleviate any concerns about the Appellant absconding from the
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jurisdiction of the Court.
20. The appeal is allowed accordingly.|
A perusal of the above-said judgment would show that it has
been categorically held by the Hon'ble Supreme Court that once the accused
has filed an application for default bail under Proviso to 167(2) Cr.P.C.,
then he is deemed to have 'availed of' or enforced his right to be released on
default bail and in case the said bail application is filed upon the expiry of
180 days or the extended period, as the case may be, the Court must release
him on bail forthwith without any unnecessary delay and the said right to be
released on default bail continues to remain enforceable in case the accused
has applied for such bail, notwithstanding the subsequent filing of the
chargesheet or a report seeking extension of time by the prosecution or
filing the chargsheet during the interregnum period when challenge to the
rejection of the bail application is pending before a higher Court. Thus, from
the ratio of law laid down in the above-sad judgment, it can be inferred that
the right of the petitioner to default bail is to be determined considering the
date when the said application is filed under the proviso to Section 167(2)
Cr.P.C. and merely because subsequent to the filing of the present
application i.e., on 09.01.2023, the FSL report has been submitted on
11.01.2023, the same would not take away the right of the petitioner which
had crystallized on the date of the filing of the said application i.e., on
09.01.2023. No contrary law has been shown by the respondent on the said
aspect. Thus, question No.1 stands decided in favour of the petitioner.
With respect to question No.2, it would be relevant to note that
on account of the conflict of opinion on the issue that is, whether in NDPS
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cases, the presentation of report under Section 173(2) Cr.P.C. by the police
without the report of Chemical examiner/Forensic Science Laboratory
amounts to an incomplete challan and in the absence of any extension of
time under Section 36-A(4) of the N.D.P.S. Act, the accused is entitled to
bail under Section 167(2) Cr.P.C. or not, the matter had been referred to a
Division Bench of this Court and the said fact has been noticed in Criminal
Revision No.1135 of 2020. The relevant portion of the judgment in
Suresh's case (supra) passed by a Coordinate Bench is reproduced
hereinbelow:
2. Vide the Impugned Order, the Ld. Additional Sessions Judge,
Fatehabad had dismissed the Petitioner's Application for Bail under
Section 36-A of the NDPS Act read with Section 167(2) of the Cr.P.C.
xxx--xxx--xxx
4. It may be mentioned that the aforesaid decision of the
Division Bench in Ajit Singh alias Jeeta's case (supra) was passed in
view of a question sent up for consideration in those seven cases, which
was as follows:-
"Whether the presentation of report under Section 173(2)
Cr.P.C. by the police without the report of Chemical examiner/Forensic
Science Laboratory amounts to incomplete challan and in the absence
of any extension of time under Section 36-A(4) of the N.D.P.S. Act, the
accused is entitled to bail under Section 167(2) Cr.P.C.?"
5. The Division Bench answered the above reference by holding
that a Challan presented without Chemical Examiner's Report can only
be termed as an incomplete one, which would result in Default Bail to
the accused unless an Application was moved by the Investigating
Agency with a prayer for extension of time. The relevant extracts from
the decision of the Division Bench are set down as below :-
"For this reason as well, it is essential that the report of the
Chemical Examiner be included in the report under Section 173 Cr.P.C.
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and without which it can at best be termed to be an incomplete challan
depriving the Magistrate of relevant material take cognizance and if it
is not submitted within the requisite period of 180 days, it would
essentially result in a default benefit to the accused unless an
application is moved by the Investigating Agency apprising the Court
of status of investigation with a prayer for extension of time to the
satisfaction of the Court.
We emphasize on the stringent aspect of the N.D.P.S. Act which
would compellingly persuade us to take the aforesaid view. Without
determining the nature and content of the contraband, it would be
draconian to propel an accused into the throes of a trial. The liberty of
an individual would constantly be imperiled at the hands of dubious
officials of the police who may venture to falsely implicate a person.
It is for this reason that we would unhesitatingly conclude that
the Chemical Examiner's report is an essential ; integral and inherent
part of the investigation under the N.D.P.S. Act as it would lay the
foundation of an accused's culpability without which a Magistrate
would not be enabled to form an opinion and take cognizance of the
accused's involvement in the commission of offence under the Act."
6. The Ld. Court below nevertheless rejected the Petitioner's
Application by relying upon a Single Bench's decision of this Court in
case of 'Shankar vs. State of Haryana - CRM-M No.44412 of 2019', in
which it was held that the above decision of the Division Bench was per
incuriam since it had not taken into account an earlier decision of the
Supreme Court in the case of 'Narendra Kumar Amin vs. CBI and
others, 2015(3) SCC 417', wherein it was mentioned that once a Police
Report has been filed as defined in Section 2(r) read with Section 173
(2) of the Cr.P.C., the accused cannot claim that since along with the
Police Report some documents have not been attached, hence the
accused is entitled to Bail under Section 167(2) of the Cr.P.C. 7. Ld.
Counsel for the Petitioner has however relied upon a subsequent
decision of another Single Bench of this Court in CRR No.1125 of 2020
- Julfkar vs. State of Haryana, in which the said Bench disagreed with
the decision of the Single Bench in CRR No.1713 of 2019 - Akash
Kumar @ Sunny vs. State of Haryana' as it was of the view that a
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smaller Bench could not have declared the Judgment of a Larger Bench
to be per incuriam. The concerned Petitioner was therefore granted
bail by the Single Bench in the subsequent decision with a further
direction that the matter be referred to a Division Bench for
consideration of the controversy which had thus arisen. The relevant
observations of the Bench in Julfkar's case (supra) are set out as
below :-
"I am now faced with a situation where I am confronted with
two Single Bench judgments in Akash Kumar alias Sunny (supra) and
Shankar (supra) and a binding Division Bench judgement in Ajit Singh
alias Jeeta (supra). By virtue of the doctrine of stare decisis, the Single
Bench judgements in Akash Kumar alias Sunny (supra) and Shankar
(supra) are binding on me as they lay down a proposition of law
although at variance with the law laid down by the Division Bench in
Ajit Singh alias Jeeta. However, I express my respectful disagreement
with the aforementioned Single Bench judgements on the ground that a
smaller Bench could not have declared the judgement of a larger Bench
to be per incuriam in view of the doctrine of stare decisis and also that
the principle of per incuriam has been applied erroneously. Judicial
discipline demands that a reference be made to a Division Bench
regarding the validity and correctness of the aforementioned Single
Bench judgements. The file of this case be, thus, placed before Hon'ble
the Chief Justice with a request to constitute a Division Bench for
consideration of this matter. Since the law has been unsettled and is
leading to confusion amongst the trial Courts, the matter may be
considered urgently. Meanwhile, it is directed that the petitioner be
released on bail on furnishing bail and surety bonds to the satisfaction
of the trial Court."
"This Criminal Revision Petition is directed against the
Impugned Order dated 31st August, 2020 passed by the Ld. Additional
Sessions Judge, Fatehabad, in case arising out of FIR No.38, dated
28th February, 2020, under Sections 22(C) of the Narcotic Drugs and
Psychotropic Substances Act No.61 of 1985 (for short, the NDPS Act)
and Sections 18(A) and 18(C) of Drugs and Cosmetics Act, 1940
registered at Police Station Sadar Tohana, District Fatehabad,
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Haryana.
8. Relying on the decision in Julfkar's case (supra), another
Single Bench thereafter has similarly granted Default Bail to the
Petitioner in 'CRR No.1150 of 2020 - Rinku vs. State of Haryana' since
in another subsequent decision in 'M. Ravindran vs. The Intelligence
Officer, Directorate of Revenue Intelligence, Criminal Appeal No.699
of 2020', the Apex Court has held that subsequent presentation of FSL
Report after submission of the Bail Application, will not extinguish the
right of a Petitioner to seek Default Bail. Another Single Bench of this
Court in 'Melody Yodhanpuri vs. State of Punjab, Criminal Revision
No.983 of 2020', had similarly granted Bail by relying upon the
Division Bench decision in Ajit Singh @ Jeeta's case (supra).
9. In the given circumstances, this Court is also of the view that
at this stage the Petitioner ought to be granted Bail in any case since
he has already remained in detention for more than 8½ months now
and there is not record of his involvement in any other case under the
NDPS Act, and on account of on-going Covid-19 Pandemic, the trial
which could not commence is likely to take a considerable time in its
completion. Further, the validity of the decision in disregarding the
Division Bench's decision in Ajit Singh alias Jeeta's case (supra)
cannot at this stage be said to be altogether beyond controversy, since
the matter has now been referred for consideration afresh in view of the
decision in Julfkar's case (supra) which has subsequently been followed
in the case of Rinku vs. State of Haryana (supra).
10. Taking into account all the above circumstances, the
Criminal Revision Petition is allowed at this stage and the Petitioner is
permitted to be conditionally released on bail to the satisfaction of the
Ld. Trial Court concerned. It is however clarified that in case of any
different result comingforth from that in the decision in Ajit Singh alias
Jeeta's case (supra), the State would be at liberty to seek
cancellation/modification of this order, if warranted at that stage.
11. Disposed off.
November 18, 2020 (SUDIP AHLUWALIA)
JUDGE"
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A perusal of the above judgment would show that after
considering the judgment of Division Bench and also the judgment passed
in CRR No.1125 of 2020 titled as "Julfkar vs. State of Haryana", vide which
the matter has been referred to a Division Bench, the petitioner therein was
granted interim bail.
The case of the present petitioner, with respect to the second
question is covered by the judgment of Coordinate Bench of this Court
passed in Suresh's case (supra) and thus, the petitioner also deserves the
relief which has been granted in Suresh's case (supra).
Keeping in view the abovesaid facts and circumstances as also
the law laid down in the above-said judgments, the present revision petition
is allowed at this stage and the petitioner is ordered to be released on bail
conditionally subject to the satisfaction of the concerned trial Court/Duty
Magistrate. It is, however, clarified that in case, the question of law is held
against the present petitioner and is contrary to the law laid down in Ajit
Singh alias Jeeta's case (supra), then, the State would be at liberty to seek
cancellation/modification of this order, if warranted at that stage.
30.01.2023 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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