2024 Supreme(P&H) 779
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SANDEEP MOUDGIL, J.
Pardeep Kumar – Petitioner
Versus
State of Haryana – Respondent
CRR-733 of 2024
Decided On : 18-04-2024
Advocates Appeared:
Mr. Arjun Dhingra, Advocate; For the Petitioner
Mr. B.S. Virk, Sr. DAG, Haryana.
The right to default bail under Section 167(2) Cr.P.C. is absolute and must be granted if the prosecution fails to file a challan within the stipulated time, as per Section 36A(4) of the NDPS Act.
Headnote:(A) NDPS Act, 1985 - Section 36A(4) - Code of Criminal Procedure, 1973 - Section 167(2) - Default bail - The petitioner sought default bail after the expiry of 180 days without filing of challan - The court held that the right to default bail is absolute and must be granted if the investigation is not completed within the stipulated time. (Paras 12, 14, 17)
(B) Legal principles - The court emphasized that the investigating agency must seek an extension through the Public Prosecutor, and failure to do so violates the accused's rights. (Paras 11, 16)
Facts of the case:
The petitioner was arrested under the NDPS Act, and the investigation was not completed within the mandated 180 days, leading to a request for default bail. (Para 4)
Findings of Court:
The court found that the petitioner had an indefeasible right to default bail due to the prosecution's failure to file the challan in time. (Paras 12, 17)
Issues: The main issues were whether the petitioner was entitled to default bail and if the extension of time for investigation was valid. (Paras 4, 11)
Ratio Decidendi: The court ruled that the right to default bail under Section 167(2) is absolute and must be granted when the investigation is not completed within the specified period. (Paras 12, 14)
Result: The order denying default bail was set aside, and the petitioner was granted bail. (Para 18)
JUDGMENT
Mr. Sandeep Moudgil, J. (Oral)
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 36A(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 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- 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 7419701
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