- (1.) Petitioner seeks concession of regular bail in a case of recovery of intoxicating injections, capsules and powder. He was arrested on 26.4.2013 and has been in judicial custody w.e.f. 28.4.2013. 180 days required for presentation of challan under the NDPS Act, expired on 24.10.2013. The petitioner opted to file an application under Section 167 (2) Cr.P.C. on 24.10.2013 as the challan had not been presented. It is also pertinent to observe here that an application under Section 36 A (4) of the NDPS Act, for extension of time to present challan and to authorize detention for a period beyond 180 days was filed well in time prior to the expiry of 180 days i.e., on 23.10.2013. The trial Court opted to allow the application under Section 36 A (4) of the NDPS Act and dismiss the application under Section 167 (2) Cr.P.C., on 30.10.2013. The reasons for seeking extension does not appear to be of much relevance as the prosecution agency claims that the original file had been lost in the theft on 21.10.2013. The petitioner has sought concession of bail claiming that indefeasible right accrued to the petitioner on expiry of 180 days on 24.10.2013, cannot be defeated by pendency of an application under Section 36 A (4) of the NDPS Act which was not allowed by 24.10.2013 before the expiry of 180 days.
(2.) I have considered the contentions of the learned counsel for the petitioner as well as of the State counsel regarding the right of the petitioner to be released on bail on expiry of 180 days permitted for presentation of challan in the NDPS Act cases where the commercial quantity of contraband is alleged to have been recovered and the right of the prosecution agency to seek extension of time under the statute by moving an application under Section 36 A (4) of the NDPS Act. In a judgment passed by this Court in Hardeep Singh Vs. State of Punjab, CRM-M-17260-2014, decided on 29.5.2014, taking into consideration the judgment of Hon'ble the Apex Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau and another, 2009 17 SCC 631, besides the provisions of under Section 36 A (4) of the NDPS Act and Section 167 (2) Cr.P.C., it has been held as follows: - "I have considered the ratio of the judgment in case Sanjay Kedia on the basis of which the prosecution had moved an application in the shape of report under Section 36 A (4) of the NDPS Act. It has been held in the said judgment that in case the investigation is not completed within 180 days the Court is empowered to authorize detention for a period upto one year provided following conditions are specified: - i) report of the Public Prosecutor indicating the progress of investigation; ii) specific and compelling reasons for seeking detention of the accused beyond 180 days should be mentioned; and iii) notice should have been issued to the accused. In the present case, I am of the opinion that Public Prosecutor had taken abundant caution to present application well in time i.e., on 10.4.2014 but the said application having not been allowed after notice to the accused within 180 days, an indefeasible right had accrued to the petitioner when he moved an application on 15.4.2014. The said right could not have been defeated by delaying a decision on the application for extension of time to present challan and to permit detention beyond 180 days or by delaying the decision on the application under Section 167 (2) Cr.P.C. filed by the petitioner on 15.4.2014 for 3.5.1014. Indefeasible right accrued to the petitioner could not have been defeated. The petitioner, thus, has got a right to be released on bail. XXX XXX XXX. Before parting with it may be observed that as the petitioner has been able to get the benefit of default of the prosecution agency and also the delay caused in decision of the application under Section 36 A (4) of the NDPS Act, I am of the considered opinion that whenever any application under Section 36 A (4) of the NDPS Act, is filed by the prosecution agency seeking authorization of the detenu as accused in custody beyond the period of 180 days, said application should be decided expeditiously."
(3.) In another case Kaka Singh Vs. State of Punjab, CRM-M-22760-2014, decided on 12.8.2014, this Court taking into consideration the judgment in case Union of India through CBI Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav,2014 4 RAJ 265, it was observed as follows: - "I have heard learned counsel for the petitioner. In a judgment passed by this Court in Hardeep Singh Vs. State of Punjab, CRM M- 17260 of 2014 granting bail in similar circumstances vide order dated May 29, 2014, this Court has observed that whenever any application under Section 36 A (4) of the Act was filed by the prosecution agency seeking authorization of detention of an accused in custody beyond the period of 180 days, said application should be decided expeditiously. Similarly, the Apex Court in the case of Union of India through CBI Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav,2014 4 RAJ 265has issued directions that an application under Section 167 (2) Cr.P.C. filed on behalf of the accused should be decided by the Magistrate on the same day. The petitioner in the present case seeks to take advantage of the following lapses:- i) lapses on the part of the FSL in sending the report expeditiously pertaining to the narcotic medicines recovered from the petitioner; ii) default on the part of the prosecution agency to present challan on account of above said lapse; iii) lapse on the part of the trial Court in not deciding the application filed by Public Prosecutor on September 21, 2013 prior to the expiry of 180 days under Section 36 A (4) of the Act; iv) Lapse on the part of the Court in not deciding the application under Section 167 (2) Cr.P.C. which was filed on September 24, 2013. The petitioner seems to have acquired an indefeasible right to be released on bail on the basis of the above said circumstances, as the statute confers a right upon him to be released after expiry of 180 days but at the same time, it is not out of place to observe here that as an abundant caution, the prosecution agency in order to prevent the release of accused had filed an application under Section 36 A (4) of the Act on September 21, 2013 which application could have been decided after issuing notice to the petitioner in jail by September 24, 2013 before expiry of period of 180 days. Had that application been decided by passing a speaking order in accordance with law, the petitioner would not have got an opportunity to seek the advantage of default of the prosecution agency in presentation of challan by moving an application under Section 167 (2) Cr.P.C.";