2014 (4) TMI 1305 - HC - Indian Laws

Grant of regular bail - alleged recovery of 4 kgs. of heroin - Section 167 Cr.P.C. read with Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act - HELD THAT - Under Section 167 of the Code of Criminal Procedure and under its various sub-sections, the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view the gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act. The application preferred by the prosecution seeking extension of time has been produced by the learned State counsel before this Court during the course of hearing and a perusal thereof would reveal that the only basis and reason cited therein was that the report of Chemical Examiner had not been received. There has been a noncompliance of the provisions contained in Section 36-A of the Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reasons for seeking the detention of the accused beyond a period of 180 days. The reasons recorded by the trial Court in the order dated 12.03.2014 do not even advert to the conditions as provided for under Section 36-A(4) of the Act. The Hon'ble Supreme Court in HITENDRA VISHNU THAKUR VERSUS STATE OF MAHARASHTRA 1994 (7) TMI 343 - SUPREME COURT while dealing with the proviso inserted as clause (bb) in sub-section (4) of Section 20 of TADA which is parimateria with the proviso to sub- Section (4) of Section 36-A of the Act had categorically held that even though the proviso does not specifically mandate the issuance of a notice to the accused while seeking extension yet the issuance of a notice has to be read into the provision which would be, both, in the interest of the accused, as also the prosecution as well as for doing complete justice between the parties. Such requirement was held to be in consonance with the principles of natural justice. This Court would have no hesitation in observing that the application submitted seeking extension of time for completion of investigation as also the order passed thereon by the Special Judge, Tarn Taran granting extension of three months have been done in a routine and mechanical fashion. The petitioner in the present case having filed the bail application on the expiry of the stipulated period as per Section 167(2) of the Code of Criminal Procedure had acquired an indefeasible right for grant of bail notwithstanding the grant of extension of time by the trial Court for completion of investigation and presentation of final report. Bail granted subject to conditions imposed - bail application allowed.

Summary

Issues:
Grant of regular bail under Section 167 Cr.P.C. read with Section 36(A) of the NDPS Act.

Analysis:
The judgment pertains to a petition filed for the grant of regular bail to the petitioner in a case involving the recovery of heroin. The court highlighted the provisions of Section 167 of the Code of Criminal Procedure, which specify the maximum period for which a person can be detained during an investigation. It was noted that under the Narcotic Drugs and Psychotropic Substances Act, the maximum detention period can be extended to 180 days for certain offenses. The court referred to the Hon'ble Supreme Court's decision in Hitendra Vishnu Thakur v. State of Maharashtra, emphasizing the importance of issuing a notice to the accused when seeking an extension of detention beyond the prescribed period.

In this case, the prosecution sought an extension of time under Section 36-A of the Act, citing the non-receipt of a report from the Chemical Examiner. However, the court found that the reasons provided did not comply with the stringent conditions outlined in the Act. The court observed that the trial court's order granting the extension appeared to be a routine and mechanical decision, lacking proper consideration of the legal requirements.

The court concluded that the petitioner, who had applied for bail after the expiry of the stipulated period under Section 167(2) of the Code of Criminal Procedure, had an indefeasible right to bail. Despite the extension granted by the trial court for the completion of the investigation, the petitioner's right to bail could not be overridden. Therefore, the court allowed the petition and granted bail to the petitioner to the satisfaction of the trial court.

Overall, the judgment underscores the importance of adhering to the legal provisions governing the detention and bail of accused persons, ensuring that procedural requirements are met to safeguard the rights of the accused while upholding principles of natural justice.