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PUNJAB & HARYANA HIGH COURT
J.G.Chitre, J.
Gauri Shankar
Versus
Central Narcotics Bureau
Miscellaneous Criminal Case No. 1706 of 1994,
Decided On : SEPTEMBER 20, 1994
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SEC.8/18 - APPLICANT CHARGED WITH OFFENCE - CHARGE SHEET NOT SUBMITTED WITHIN 90 DAYS - APPLICANT ENTITLED TO BAIL UNDER SEC.167 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 (CODE) - JUDGMENT OF FULL BENCH OF HIGH COURT IN RAMDAYAL'S CASE OVERRULED BY SUPREME COURT OBSERVATIONS IN DEEPAK MAHAJANS CASE AND HITENDRA THAKUR'S CASE - APPLICANT TO FURNISH SECURITY AND PR BOND.
Fact of the Case:
Applicant Gaurishankar was charged with an offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The charge sheet was not submitted against him within 90 days from the date of his arrest. He applied for bail under Section 167 (2) of the Code of Criminal Procedure, 1973 (Code).
Finding of the Court:
The court held that the applicant was entitled to bail under Section 167 (2) of the Code due to the default of the investigating agency in submitting the charge sheet within the prescribed period. The court observed that the judgment of the Full Bench of the High Court in Ramdayal's case, which held that Section 167 (2) of the Code was not applicable to proceedings under the NDPS Act, was overruled by the Supreme Court's observations in Deepak Mahajans case and Hitendra Thakur's case.
Issues: 1. Whether the applicant was entitled to bail under Section 167 (2) of the Code due to the default of the investigating agency in submitting the charge sheet within the prescribed period? 2. Whether the judgment of the Full Bench of the High Court in Ramdayal's case was overruled by the Supreme Court's observations in Deepak Mahajans case and Hitendra Thakur's case?
Ratio Decidendi: 1. The court held that the applicant was entitled to bail under Section 167 (2) of the Code due to the default of the investigating agency in submitting the charge sheet within the prescribed period. The court relied on the Supreme Court's observations in Deepak Mahajans case and Hitendra Thakur's case, which held that Section 167 (2) of the Code was applicable to proceedings under the NDPS Act and that an accused person was entitled to bail on default of the investigating agency in submitting the charge sheet within the prescribed period. 2. The court held that the judgment of the Full Bench of the High Court in Ramdayal's case, which held that Section 167 (2) of the Code was not applicable to proceedings under the NDPS Act, was overruled by the Supreme Court's observations in Deepak Mahajans case and Hitendra Thakur's case.
Final Decision: The court allowed the bail application and released the applicant on bail under Section 167 (2) of the Code. The applicant was directed to furnish security and a PR bond before the Chief Judicial Magistrate Mandsaur.
J. G. Chitre, J.
1. Applicant Gaurishankar is hereby making a prayer for release on bail by this application. Applicant has been charged for commission of offence punishable under provision of Sec.8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N. D. P. S. Act ). It is the contention of the applicant that the charge sheet has not been submitted against him in the Court by the investigating agency within period of 90 days from the date of his arrest. He is entitled to be released on bail in view of provisions of Sec.167 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code ).
2. As this application is revolving around the sole point of the right of the applicant to get released on bail in view of provisions of Sec.167 (2) of the Code, it is not necessary to State prosecution allegation against him. It is admitted fact that applicant has been arrested by the police on the charge of commission of offence punishable u/sec.8/18 of the N. D. P. S. Act. It is also admitted fact that the charge sheet has not been submitted against him in the Court for the said offence within the period of 90 days from the date of his arrest.
3. Learned Counsel for the applicant Shri Jaisingh placed reliance on the judgment bf the Supreme Court in the matter of Rajnikant Jivanlal Patel and Anr. V/s. Intelligence Officer, Narcotic Control Bureau, New Delhi, wherein the Supreme Court has held: An order for release on bail under proviso (a) to Sec.167 (2) may appropriately be termed as an order on default. Indeeds it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail u/ Sec.167 (2) proviso (a) thereto is absolute. It is legislative command and not Courts discretion. If the investigating agency fails to file charge sheet before the expiry of 90/60 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 90/60 days he must pass an order of bail and communicate to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed the bail granted under proviso (a) to Sec.167 (2) could be cancelled.
4. Learned Counsel Shri Jaisingh also placed reliance on the judgment of Supreme Court in the matter of Director of Enforcement V/s. Deepak Mahajan and Anr. , wherein the Supreme Court observed:
"a conjoint reading of Sec.57 (corresponding to Sec.61 of Old Code) and Sec.167 (1) and (2) barring the provisos to Sub-sec. (2) of the Code together manifestly shows that the legislature has contemplated that the investigation of the offence in case of a person arrested without a warrant should be completed in the first instance within twenty four hours and if the investigation cannot be completed within that period then the Magistrate can authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days. The present proviso (s) (i) and (ii) of Sec.167 (2) empowers the Magistrate to authorise the detention of the accused person otherwise than in the custody of the police beyond the period of 15 days. If the investigation is not completed within the prescribed period, the accused is entitled to bail as embodied in the statute itself provided the accused person is prepared to and does furnish bail and the person released on bail u/sec.167 (2) of the Code should be deemed to have been so released under the provisions of Chapter XXXII for the purposes of that Chapter. "
The Supreme Court further observed in the same matter Though Sec.167 (1) refers to the investigation by the police and the transmission of the case diary to the nearest Magistrate as prescribe
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