Punjab-Haryana High Court
Pardeep Kumar vs State Of Haryana on 18 April, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:052426
CRR-733-2024 -1-
107 2024:PHHC:052426
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-733-2024
DECIDED ON: 18.04.2024
PARDEEP KUMAR
.....PETITIONER
VERSUS
STATE OF HARYANA
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Arjun Dhingra, Advocate
for the petitioner.
Mr. B.S. Virk, Sr. DAG, Haryana.
SANDEEP MOUDGIL, J (ORAL)
1. The instant revision petition has been preferred invoking
jurisdiction of this Court under Section 401 Cr.P.C. while seeking two reliefs
in the common petition i.e. for setting aside order dated 26.02.2024 whereby
the application under Section 36-A(4) of NDPS Act, 1985 for extension of
time to file the challan has been allowed and the order dated 27.02.2024 vide
which default bail sought by the petitioner has been declined in case FIR
No.0584, dated 30.08.2023, under Section 20 of NDPS Act, 1985, registered
at Police Station City Palwal.
2. Since, the orders challenged before this Court by way of a
common revision petition are passed on different dates on different cause of
action, Mr. Arjun Dhingra, Advocate for the petitioner confines his prayer to
the order dated 27.02.2024 and prays for default bail while withdrawing his
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petition qua the challenge to order dated 26.02.2024 with liberty to challenge
the same by separate revision petition.
3. The prayer is accepted in the interest of justice and this Court
would proceed further to adjudicate on the revision petition on the prayer as
to whether petitioner is entitled to the benefit of default bail under Section
167(2) Cr.P.C. The facts culminated into the FIR could be read as narrated
therein which is reproduced hereinbelow:-
"To the SHO sir police station city palwal jai hind that today on
dated 30.08.2023 I ASI Kushal Kumar with HC Manoj No.
1194, Constable Sandeep No. 478, Constable Ravindra No.
1007 patrolling at Hooda Chowk Delhi Agra Road flyover for
prevention of crime and drug abuse. in Palwal and the special
informer informed that Captain and Pardeep are coming
towards Delhi from Mathura (U.P.) in car canter number RJ-
32GB-0932, after filling coconuts with hemp and covering them
with tripaal. If immediate blockade is imposed on NH 19, the
above mentioned vehicle along with the ganja can be
controlled. On receiving the information about the intoxicating
substance Ganja, the ASI prepared a separate written notice
and for the information and necessary action, constable
Ravindra No. 1007 is being sent to Palwal police station. Near
the blockade, I left for NH 19 ahead of Palwal flyover, which I
along with my ASI employee reached NH 19 ahead of Delhi
bypass, Palwal flyover, and started the blockade, after about 20
minutes from Mathura (U.P.) side towards Delhi. A canter car
was seen coming on the road and When the canter driver came
near the canter, the canter driver stopped his canter about 10-
15 steps before the blockade. After shining the torch on the
number plate of the canter, RJ-32GB-0932 was seen written on
it. ASI, with the help of his fellow officer, overpowered the
canter driver and the man sitting on the conductor seat and
checked the number at the front and rear of the canter. But RJ-
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32GB-0932 was found written on the number plate behind
which a tripal was covered. On asking the name and address of
the canter driver, the driver gave his name as Captain Yadav,
son of Mr. Sardar Singh Yadav, resident of village Bijwad
Naruka police station Malkheda district Alwar (Rajasthan) and
conductor. The person sitting on the seat told his name as
Pradeep Kumar, son of Vinod Kumar, resident of Malkheda
police station Malkheda district Alwar (Rajasthan. If there is
any suspicion that there is any intoxicant in the person's vehicle
or vehicle, a separate notice like Section 50 NDPS should be
written to the person informing them that you have the legal
right to allow a gazetted officer or area magistrate to search
you and your vehicle.. The person gave in writing to the
Gazetted Officer regarding the search of his vehicle and the ASI
prepared a separate notice under Section 42 of the NDPS Act
and sent it to Duty Magistrate Mr. Prashant Kumar SDO
DHBVN Hasanpur today in the case of NDPS Act. Constable
Ravindra No. 1007 Sent by and I requested the duty magistrate
from my mobile number 9050684314 to come to the spot on
mobile number 7419701708, after waiting for about an hour,
the duty magistrate and constable Ravindra came to the spot
and the situation was verbally explained to the duty magistrate.
When the duty magistrate searched the car and canter car, he
found seven bags of yellow colour plastic under the coconuts
covered with tripaal in the rear trunk of the car canter. When all
the plastic bags were opened and checked, they were found to
be filled with ganja leaves. When the ganja leaves were put
back in the same plastic bags and weighed using a computer
scale, the weight of bag number 1 was found to be 32 kg, weight
of bag number 2 was 28 kg, weight of bag number 3 was 26 kg
200 grams, weight of bag number 4 was 30 kg. 250 grams,
weight of Katta No. 5 was 30 kg 100 grams, weight of Katta No.
6 was 28 kg 300 grams and weight of Katta No. 7 was 19 kg
100 grams. Whose total weight was 193 kg 950 grams, all the
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plastic pieces were sealed by ASl with his seal KK and Duty
Magistrate Sahib with his seal AS, which I used my seal with
HC Manoj Kumar number 1194 and Duty Magistrate Sahib.
Kept his seal with him. The verandah, ganja leaves and the
vehicle canter mentioned above were taken to Bajaria Fard
police as evidence. The signatures of the accused witnesses and
the duty magistrate were obtained on the documents. The above
mentioned person has committed crime under section 20.61.85
NDPS ACT by illegally possessing a total of 193 kg 950 grams
of ganja leaves in their possession, which is being sent through
Constable Sandeep No. 478. Must be informed through form.
And the special report of the case should be sent by a special
carrier to the service of the area magistrate and officer And it
should be sent to 1.0 chance for further investigation.,l along
with the ASl, my fellow officers, the accused are present at the
opportunity of the case at AJ Near Delhi Bypass Palwal Fly
Over NH 19 SD:- KUSHAL KUMAR ASI CIA Staff Palwal Date
29.08.2023 Time 11.50 PM On receipt of AJ police station after
getting Tehri in police station the above case was registered
under crime 20-61-85 NDPS ACT special report CCTNS
Prepared by computer, special carrier ESI Shyam Chand 47/ is
being sent to the service of Palwal area magistrate or senior
officer. 10th chance is being sent to Police Constable Sandeep
No. 478 or ASI Rakesh CIA Staff Palwal for further action."
4. Mr. Dhingra, learned counsel for the petitioner submits that the
period of 180 days as prescribed under Section 36-A of NDPS Act expired
on 26.02.2024 in the instant FIR which was registered on 30.08.2023 and
accordingly, the application for grant of default bail was preferred by the
revisionist though the same has been declined without appreciating the fact
that the petitioner-accused is in custody pending investigation which has not
been completed within the stipulated period as envisaged under Section
167(2) Cr.P.C. He vehemently submits that on the expiry of stipulated period
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for completing the investigation and filing of challan, an indefeasible right
accrued in favour of the petitioner-accused to be released on bail on account
of default by the Investigating Agency. While referring to the case law in
"Sanjay Kumar Kedia Sanjay Kedia versus Intelligence Officer, Narcotic
Control Bureau", 2010 (1) RCR (Criminal) 942 has to be understood in
wider prospect to mean that when the petitioner-accused files an application
for default bail and is prepared to offer bail on being directed, in other
words, on expiry of the period specified in paragraph (a) to proviso to sub-
Section (2) of Section 167 Cr.P.C. if the petitioner-accused files an
application for bail and offers also to furnish the bail on being directed, then,
it has to be held that the petitioner-accused has availed his indefeasible
rights even though the Court has not considered the said application and has
not indicated the terms and conditions of the bail, and the accused has not
furnished the same.
5. It has also been asserted on behalf of the petitioner-accused that
there is a violation of Section 36-A of NDPS Act, 1985, since no report of
public prosecutor was either sought or filed seeking the detention of the
petitioner beyond the period of 180 days and, therefore, the order dated
27.02.2024 is stated to be violative of Section 36-A(4) of NDPS Act.
6. Notice of motion.
7. On the asking of the Court, Mr. B.S. Virk, Sr. DAG, Haryana
accepts notice on behalf of the respondent-State, who submits that the FIR
was registered on 30.08.2023 and prior to expiry of 180 days available with
the Investigating Agency, an application for extension of time was preferred
which was allowed by extension of 30 days more to conclude the
investigation on 26.02.2024 by the Additional Sessions Judge, Palwal and in
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the light of the same, the prayer for seeking default bail is not maintainable
at this stage to the petitioner-accused and sought dismissal of the present
revision petition on that ground alone.
8. It would be appetite to note down the provisions as incorporated
under Section 167(2) Cr.P.C. which read as under:-
"(2)The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has
not jurisdiction to try the case, from time to time
authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding fifteen
days in the whole; and if he has no jurisdiction to try the
case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such
jurisdiction :Provided that -(a)[ the Magistrate may
authorise the detention of the accused person, otherwise
than in the custody of the police, beyond the period of
fifteen days, if he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this
paragraph for a total period exceeding, -[Substituted by
Act 45 of 1978, Section 13, for paragraph (a) (w.e.f. 18-
12-1978).](i)ninety days, where the investigation relates
to an offence punishable with death, imprisonment for life
or imprisonment for a term of not less than ten years;
(ii)sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the accused
person shall be released on bail if he is prepared to and
does furnish bail, and every person released on bail
under this sub-section shall be deemed to be so released
under the provisions of Chapter XXXIII for the purposes
of that Chapter;]
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(b)[ no Magistrate shall authorise detention of the
accused in custody of the police under this Section unless
the accused is produced before him in person for the first
time and subsequently every time till the accused remains
in the custody of the police, but the Magistrate may
extend further detention in judicial custody on production
of the accused either in person or through the medium of
electronic video linkage.][Substituted by the Code of
Criminal Procedure (Amendment) Act, 2008 (5 of 2009),
Section 14 (a) (i), for Cl. (b). Prior to its substitution, Cl
(b) read as under.-[(b) no Magistrate shall authorise
detention in any custody under this Section unless the
accused is produced before him;].]
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police."
9. Without having glance at Section 36-A particularly sub-Section
(4) of NDPS Act, the discussion would be improper which is also
reproduced hereinbelow:-
"(4) In respect of persons accused of an offence
punishable under section 19 or section 24 or section 27A
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 up to 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."
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10. It is an admitted fact that no report of public prosecutor was
received as the question of endorsement would also not arise since no such
application was admittedly filed by the public prosecutor seeking detention
of the petitioner-accused beyond 180 days.
11. Section 36(A)(4) of NDPS Act is in tune with the legislative
intent to have the investigations completed expeditiously and not to allow an
accused to be kept in continued detention during unnecessary prolonged
investigation at the whims of the police. The legislature expects that the
investigation must be completed with utmost promptitude but where it
becomes necessary to seek some more time for completion of the
investigation, the investigating agency must submit itself to the scrutiny of
the Public Prosecutor in the first instances and satisfy him about the progress
on the investigation and furnish reasons for seeking further custody of an
accused. A Public Prosecutor is an important officer of the State Government
and is appointed by the State under the code of Criminal Procedure. He is
not a part of the Investigating Agency. He is an independent statutory
authority. The Public Prosecutor is expected to independently apply his mind
to the request of the Investigating agency before submitting a report to the
court for extension of time with a view to enable the investigating agency to
complete the investigation. Thus for seeking extension of time, the Public
Prosecutor after an independent application of his mind to the request of the
investigating agency is required to make a report to the Designated Court
indicating therein the progress of the investigation and disclosing
justification for keeping the accused in further custody to enable the
investigating agency to complete the investigation and must attach the
request of the Investigating Officer along with his request or application and
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report and the same must disclose on the face of it that he has applied his
mind and was satisfied with the progress of the investigation and considered
grant of further time to complete the investigation necessary.
12. Thus, the impugned order dated 27.02.2024 lack satisfaction of
mandatory conditions of Section 36 A (4) of the NDPS Act and in the
absence of an appropriate report, the Court below should not have deprived
the petitioner for his indefeasible right to be released on bail on account of
the default of the prosecution to file the challan within a prescribed time.
Moreover, no extension should have been granted to keep the petitioner in
custody on the prescribed period except to enable the investigation to be
completed. Accordingly this Court is of considered view that as per Section
167 (2) Cr.P.C., the indefeasible right had been accrued in favour of the
petitioner when police failed to complete the investigation and put up the
challan against him in accordance with law and the said right to bail under
Section 167 (2) Cr.P.C., is absolute, which is a legislative command and not
a Court's discretion.
13. A conspectus of the aforesaid decisions would show that so long
as an application for grant of default bail is made on expiry of the period of
180 days before a charge sheet is filed, the right to default bail becomes
complete. It is of no moment that the Criminal Court in question either does
not dispose of such application before the charge sheet is filed or disposes of
such application wrongly before such charge sheet is filed. So long as an
application has been made for default bail on expiry of the stated period
before time is further extended to the maximum period of 180 days, default
bail, being an indefeasible right of the accused under the first proviso to
Section 167 (2), kicks in and must be granted.
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14. However, the question of personal liberty of an accused, under a
statute which imposes drastic punishments is involved. The right to default
bail, as has been held by the judgments of the Apex Court as well as of this
Court, is not only the statutory right under the first proviso to Section 167
(2) of the Code, but is part of the procedure established by law under Article
21 of the Constitution of India, which is, therefore, a fundamental right
granted to an accused person to be released on bail once the conditions of
the first proviso to Section 167(2) are fulfilled.
15. The question of default bail has been a matter of discussion for
quite a long time before the Hon'ble Supreme Court in "Uday Mohanlal
Acharya versus State of Maharashtra", (2001) 5 SCC 453 and in para 12 of
its judgment crystallized the issue as to the rights of an accused who is in
custody pending investigation which is not completed within the stipulated
time as prescribed under Section 167(2) Cr.P.C. The relevant paragraph
therefrom would read as under:-
12. On the aforesaid premises, we would record our
conclusions as follows:-
1. Under sub-section (2) of Section 167, a Magistrate
before whom an accused is produced while the police is
investigating into the offence can authorise detention the
accused in such custody as the Magistrate thinks fit for a
term not exceeding 15 days in the whole.
2. Under the proviso to aforesaid sub-section (2) of
Section 167, the Magistrate may authorise detention of
the accused otherwise than the custody of police for a
total period not exceeding 90 days where the
investigation relates to offence punishable with death
imprisonment for life or imprisonment for a term of not
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less than 10 years, and 60 days where the investigation
relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days,
as the case may be, an indefeasible right accrues in
favour of the accused for being released on bail on
account of default by the Investigating Agency in the
completion of the investigation within the period
prescribed and the accused is entitled to be released on
bail, if he is prepared to and furnish the bail, as directed
by the Magistrate.
4. When an application for bail is filed by an accused for
enforcement of his indefeasible right alleged to have
accrued in his favour on account of default on the part of
the Investigating Agency in completion of the
investigation within the specified period, the
Magistrate/Court must dispose of it forthwith, on being
satisfied that in fact the accused has been custody for the
period of 90 days or 60 days, as specified and no charge-
sheet has been filed by the Investigating Agency. Such
prompt action on the part art of the Magistrate/Court will
not enable the prosecution to frustrate the object of the
Act and the legislative mandate of an accused being
released on bail on account of the default on the part of
the Investigating Agency in completing the investigation
within the period stipulated.
5. If the accused is unable to furnish bail, as directed by
the Magistrate, then the conjoint reading of Explanation I
and proviso to sub-section (2) of Section 167, the
continued custody of the accused even beyond the
specified period in paragraph (a) will not be
unauthorised, and, therefore, if during that period the
investigation is complete and charge sheet is filed then
the so-called indefeasible right of the accused would
stand extinguished.
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6. The expression if not already availed of used by this
Court in Sanjay Dutt's case (supra) must be understood
to mean when the accused files an application and is
prepared to offer bail on being directed in other words,
on expiry of the period specified in paragraph (a) of
proviso to sub-section (2) of Section 167 if the accused
files an application for bail and offers also to furnish the
bail on being directed, then it has to be held that the
accused has availed of his indefeasible right even though
the Court has not considered the said application and has
not indicated the terms and conditions of bail, and the
accused has not furnished the same.
Also, in the latest case of Joginder Singh V. State
of Haryana, 2022 (1) Law Herald 765, CRM M-
48705/2021 decided on 11.02.2022, it has been held
that:-
14. In the case in hand, the application for extension
signed by the Investigating Officer cannot be construed
as a report of the Public Prosecutor as envisaged in
Proviso to sub section (4) of Section 36A of the NDPS Act
for the reason that Public Prosecutor had only appended
his signatures at the bottom of the page, that too, without
even making an endorsement that he had perused the
grounds and that, he was satisfied about the progress of
investigation and reasons set out for extension of time to
complete the investigation. Further, the report did not
disclose the progress of investigation It is a settle
proposition of law that report is not a mere formality but
requires due application of mind as to the ground for
delay in filing challan and the reasons for further
detention of accused. In the considered view of this
Court, the application/report filed by the prosecution did
not meet the aforesaid requirements envisaged in Proviso
to Section 36(4) of the NDPS Act. It can safely be held
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that the application for seeking extension of time was
nothing but a transmission of request of an Investigating
Officer. The report did not reflect the steps taken for
obtaining FSL report during the period of first 180 days.
16. Record clearly reveals that the impugned orders) lack
satisfaction of aforesaid mandatory conditions of Section
36(4) of the NDPS Act. In the absence of an appropriate
report, the court would have no jurisdiction to deny an
accused his indefeasible right to be released on bail on
account of the default of the prosecution to file the
challan within the prescribed time if an accused seeks
and is prepared to furnish the bail bonds as directed by
the court Moreover, no extension can be granted to keep
an accused in custody beyond the prescribed period
except to enable the investigation to be completed and as
already stated above, before any extension is granted, the
accused must be put on notice and permitted to have his
say so as to be able to object to the grant of extension.
17. As regards Section 167(2) Cr.P.C., 1973 it creates an
indefeasible right in an accused person, on account of the
'default' by the investigating agency in the completion of
the investigation within the maximum period prescribed
or extended, as the case may be, to seek an order for his
release on bail. It is for this reason that an order for
release on bail under proviso (a) of Section 167(2)
Cr.P.C., 1973 is generally termed as an "order-on-
default" as it is granted on account of the default of the
prosecution to complete the investigation and file the
challan within the prescribed period. As a consequence of
amendment, an accused after the expiry of 180 days from
the date of his arrest becomes entitled to bail irrespective
of the nature of the offence with which he is charges,
where the prosecution fails to put up challan against him
on completion of the Investigation. Thus, in the
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considered view of this Court, as per Section 167(2)
Cr.P.C. 1973 an indefeasible right to be enlarged on bait
accrues in favour of the accused, if the police fails to
complete the investigation and put up a challan against
him in accordance with law under Section 173 Cr.P.C.,
1973 An obiigation, in such a case, is cast upon the
Court, when after the expiry of the maximum period
during which an accused could be kept in custody, to
decline the police request for further remand. There is yet
another obligation also which is cast on the court and
that is to inform the accused of his right of being released
on bail and enable him to make an application in that
behalf. This legal position has been very ably stated in
Aslam Babalal Desai v. State of Maharashtra, 1993 (1)
Recent Criminal Reports 600, where speaking for the
majority, the Hon'ble Supreme Court referred the law laid
down in Rajnikant Jivanlal Patel & another v.
Intelligence Officer, Narcotic Control Bureau, New
Delhi, AIR 1990 SC 71, wherein it was held that:-
"The right to bail under Section 167(2) proviso (a)
thereto is absolute. It is a legislative command and not
court's discretion. If the investigating agency fails to file
charge-sheet before the expiry of 90/96 days, as the case
may be, the accused in custody should be released on
bail. But at that stage, merits of the case are not to be
examined. Not at all. In fact, the magistrate has no power
to remand a person beyond the stipulated period of 90/96
days. He must pass an order of bail and communicate the
same to the accused to furnish the requisite bail bond."
16. Having given a considerable thought and after scrutinization of
the submissions of the respective parties, this Court would conclude to hold
that the revisionists/petitioner-accused has an indefeasible right accrued to
him even if the period of 180 days stands extended by the trial Court vide
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order dated 26.02.2024 i.e. the last date on which the period of 180 days
stood expired and, therefore, he is entitled to the benefit of 'default bail'
under Section 167(2) of Cr.P.C.
17. It is further made clear that this order would not stand in
between or would not mean to prohibit or otherwise prevent the arrest or re-
arrest of the petitioner-accused on cogent grounds, and upon such arrest or
re-arrest, the petitioner would also be entitled to seek regular bail which
shall be considered on its own merit and the observation made hereinabove
will have no bearing in that eventuality. Hence, the order dated 27.02.2024
passed by the Additional Sessions Judge, Palwal is hereby set aside and the
present petition is allowed.
18. Accordingly, the petitioner is directed to be released on default
bail subject to his furnishing requisite bail/surety bonds to the satisfaction of
the trial Court/Special Judge (Duty).
19. However, it is made clear that observations made hereinabove
shall have no bearings on the merits of the case.
(SANDEEP MOUDGIL)
18.04.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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