PANWAR, J. - (1.) BY the instant criminal second bail application under Sec. 439 read with Sec. 167 (2) Crpc, petitioner Hira Lal seeks bail on the ground that for a period of 60 days from the date of his production before the Magistrate, the police failed to file the challan and, therefore, the applicant filed an application seeking bail on the ground that the Magistrate is not competent to authorise detention of the petitioner after 60 days from the date he was initially produced before the Magistrate. The bail application filed by the applicant came to the rejected by the learned Sessions Judge vide order dated 1. 12. 2004 holding therein that the period for filing the challan is 90 days and not 60 days.
(2.) I have heard learned counsel for the petitioner and the Public Prosecutor for the State. Carefully gone through the order impugned and the police investigation diary (case diary ). The allegation against the petitioner is that he was found in possession of 47. 200 Kgs of poppy-straw without licence or permit, which is an offence punishable under Sec. 8/15-B the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, "the NDPS Act" ). In relation to poppy straw, the "small quantity" as provided in the Central Government Notification S. O. 1955 (E) dated 19. 10. 2001 and defined in Sec. 2 (xxiiia) of the NDPS Act, is lesser than 1000 grams and "commercial quantity" is greater than 50 Kg. As defined in Sec. 2 (viia) of the NDPS Act. The contraband poppy straw alleged to have been recovered from the petitioner is greater than the "small quantity" but lesser than the "commercial quantity. " The punishment as provided under Sec. 8/15-B of the NDPS Act for contravention of the provision involving quantity lesser than commercial quantity but greater than small quantity is regorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Sec. 36-A (1) (c) of the NDPS Act provides that the Special Court may exercise, in relation of the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Sec. 167 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) in relation to an accused person in such case who has been forwarded to him under that section. Sub-section (2) of Sec. 167 of the Code provides that the Magistrate to whom an accused person is forwarded under this section ma, 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 (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 the 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 (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less then ten years; (ii) sixty days, where the investigation relates to any other offence. Sub-sec. (4) of Sec. 36-A of the NDPS Act provides that in respect of persons accused of an offence punishable under Sec. 19 or Sec. 24 or Sec. 27-A or for the offence involving commercial quantity the references in sub-sec. (2) of Sec. 167 of the Code thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days. " Thus, so far as proviso (ii) to sub-sec. (2) of Sec. 167 of the Code is concerned, sub-sec. (4) of Sec. 36-A of the NDPS Act does not make any change with regard to the period for which a Magistrate is authorised to order detention of an accused person in the custody.
(3.) IN the instant case, the offence alleged against the accused-petitioner is under Sec. 8/15-B of the NDPS Act, which is punishable with rigorous imprisonment for a term which may extend to 10 years and a fine of one lakh rupees. Thus, for this offence, and accused person can be punished with the rigorous imprisonment varying from minimum to maximum for a term upto 10 years, but cannot be punished for a terms more than 10 years. The case of the petitioner falls under proviso (ii) to sub-sec. (2) of Sec. 167 of the Code. Admittedly, the police failed to complete investigation and filled the challan against the petitioner for a period of 60 days from the date of his initial production before the Magistrate authorising his detention. The offence punishable is with rigorous imprisonment "upto ten years", as provided under proviso (ii) to sub-sec. (2) of Sec. 167 of the Code and "not more than ten years" as provided in proviso (i) to sub-sec. (2) of Sec. 167 of the Code wherein the expression "not less than 10 years" would mean 10 years or more. There is distinction between the expressions "upto ten years" and "not less than ten years. " Wherever the clause provides the sentence "upto ten years. " and "not less than ten years. " Wherever the clause provides the sentence "upto ten years", it would be discretion of the Court trying the offence to sentence the accused before it for a period upto ten years or any period less than 10 years. IN the case where the punishment is provided "not less than then ten years", in those case the Court trying the offence will have no jurisdiction to award lesser sentence then ten years and can award the sentence of 10 years or more. This controversy came to be considered by the Hon'ble Supreme Court in Rajeev Chaudhary vs. State (NCT) of Delhi (AIR 2001 SC 2369), wherein the Hon'ble Apex Court observed as under:- " From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offence,period prescribed is 60 days. Hence, in cases, where offence is punishable with imprisonment for 10 years or more, accused could be detained upto a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Sec. 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of Proviso (a) to Sec. 167 (2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence of which punishment could be imprisonment for less then 10 years. Under Sec. 386 of the IPC, imprisonment can very from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years. " In State of M. P. vs. Rustam & Ors. (1995 (Suppl.) (3) SCC 221), the Hon'ble Supreme Court, while considering the proviso (ii) to sub-sec. (2) of Sec. 167 of the Code and dealing with compulsive bail, held that the Court must examine the availability of the right to compulsive bail on the date it is considering the question of bail and not merely on the date of presentation of the petition for bail. The Apex Court further held that the prescribed period of ninety days or sixty days, as the case may be, would instantly commence from the date on which instantly detention was authorised by the Magistrate and clear ninety or sixty days, as the case may be, have to expire before the right begins, entitling the accused of his indefeasible right to bail. ;