SARDARSINGH NAGSINGH RAJPUT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this group of three Misc. Criminal Applications pertaining to bail under the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act"), following four are indeed the questions of quite great legal importance, having sweeping effect upon the ultimate fate of the prosecution as well as that of the accused pending trial, which have surfaced during the course of arguments calling for determination of the same by this Court. They are : (1) Whether for any alleged lapse or default committed by the Investigating Agency in not submitting charge-sheet within the prescribed time limit of 90 days as warranted under Sec. 167(2)(a) of the Code of Criminal Procedure, 1973, particularly in matter of the offences punishable under the N.D.P.S. Act, the accused are straightway entitled to be released on such default bail, altogether overlooking and ignoring the limitations imposed by the Legislature on Courts on exercise of such powers under Sec. 37 (amended) of the said Act ? (2) Whether any Court can refuse to accept the charge-sheet submitted to it by the Investigating Agency on the alleged two grounds, viz., (i) that the same was not presented on either of the two days of a week so earmarked for the purpose for particular Police Station, and (ii) that the F.S.L. report/ muddamal was not forwarded alongwith it ? (3) Whether any lapse or default committed by the learned Magistrate in contravening Sec. 36A(l)(b) of the N.D.P.S. Act in not forwarding the accused to Special/Sessions Court immediately on expiry of 15th day confers any legal right upon the accused to earn mechanical default-bail on the alleged ground that as his further continued detention in judicial custody on expiry of the said 15th day, have been rendered illegal and unauthorised, - turning blind eyes to the gravity and seriousness of the offence and deaf-ears to the concern voiced by the legislature in imposing limitations on granting bail under Sec. 37 (amended) of the said Act ? AND (4) Whether in absence of the Special Courts being constituted in concerned areas under Sec. 36 of the N.D.P.S. Act, and further by virtue of express provision under Sec. 36D, the transitional jurisdiction in the said regard having been specifically vested in the Session Courts to take cognizance of the offences and conduct trial, the question of complying with requirements under Sec. 36A(l)(b) which pertains to the offences triable by Special Court by forwarding the accused to the Session Court on expiry of 15th day do not arise ?

(2.) At the outset, it may be stated that having regard to the common factssituation and circumstances in all these three petitions and the common questions of law arising therefrom, at the joint request and consent of the learned Advocates appearing for the respective parties, it is decided to hear and decide all these matters together to be disposed of simultaneously by this common judgment.

(3.) Facts : Few relevant indisputable facts and circumstances which are absolutely necessary for reference to determine the ultimate outcome of the points raised hereinabove are briefly but specifically set-out as under : 3.1 Misc. Criminal Appln. No. 4057 of 1992 - On 2-6-1992, at 11- 15 hours, the petitioner - Sardarsing Nagsing on being found in possession of 1 kg. of Opium valued at Rs. 4,000.00 was arrested, there and then, by Mr. F. A. Gohil, P. I. - L.C.B., Anand, who thereafter filed a complaint against him for the alleged offence punishable under Sees. 17 and 18 of the N.D.P.S. Act. Further as alleged, as per the requirement of Sec. 36A (1)(b) of the Act, though the petitioner was required to be forwarded to the Special/Sessions Court within the prescribed time-limit of 15 days, i.e., on or before 17-6- 1992, yet even as on today, he has not been so forwarded . It is still further alleged that though under Sec. 167(2)(a) of the Code, the charge-sheet was required to be submitted before the learned Magistrate within the prescribed time-limit of 90 days, i. e., on or before 1-9-1992, still however, the same came to be submitted on expiry of the said period, i. e., on 14-10-1992 causing delay of 44 days . On the basis of aforesaid two defaults, alleging that as his further continued detention was quite illegal and unauthorised, the petitioner submitted a bail application, the same being Misc. Criminal Application No. 851 of 1992, before the Sessions Court, at Nadiad which came to be dismissed by the judgment and order dated 7-9-1992, giving rise to the present Misc. Criminal Application. 3.2 Misc. Criminal Appln. No. 182 of 1993 - On 1-8-1992 at about 15-00 hours, the petitioner - Ilias Ismail Sipoy, who was going on bicycle alongwith one Yusuf Ismail [absconding] on being found in possession of 240 grams of 'Charas' [6 small pallets ] valued at Rs. 2,890.00 was arrested on the spot by Mr. B. K. Ayer, P.I. A.C.B., Bhavnagar, who thereafter on the basis of alleged facts filed a complaint against them for the offences punishable under Sees. 8 and 20(b) of the N. D. P. S. Act. Further as alleged, as per the requirement of Sec. 36A(l)(b) of the Act, though the petitioner was required to be forwarded to the Special/Sessions Court on or before 18- 8-1992, yet as the record shows he came to be so forwarded only on 15- 2-1993 . Raising this sole ground, the petitioner submitted a bail application, the same being Misc. Criminal Application No. 968 of 1992 before the learned Additional Sessions Judge, who ultimately by judgment and order dated 23- 11-1992 dismissed the same giving rise to the present Misc. Criminal Application. 3.3 Misc. Criminal Appln. No. 253 of 1993 - On 23-10-1992 at about 2-00 a.m. the petitioner - Hasam Kasam Shaikh alongwith two other accused persons on being found in possession of 538 grams of 'Charas' valued at Rs. 7,400/- were arrested on the spot by Mr. G. S. Raghuvanshi, P.S.I., "B" Division, Rajkot City Police Station, who thereafter filed a complaint against them for the alleged offences punishable under Sees. 20 and 29 of N.D.P.S. Act. Further as alleged, as per the requirement of Sec. 36A(l)(b) of the Act, though the petitioners were required to be forwarded to the Special/Sessions Court on or before 6-10-1992, they came to be forwarded to the said Court on 9-11-1992, i.e., there was a delay of 36 days . On the basis of the aforesaid ground the petitioners submitted a bail application, the same being Misc. Criminal Application No. 798 of 1992 before the learned Sessions Judge at Rajkot who ultimately dismissed the same on 19-11-1992, giving rise to the present Misc. Criminal Application. 3.4 From the facts and circumstances set-out above in paras 3.1, 3.2 and 3.3, it could be seen that so far Misc. Criminal Application at para No. 3.1 is concerned, the same raises all the four questions mentioned at the top of this judgment, whereas so far as the rest of two Misc. Criminal Applications are concerned, the point raised therein are only two, namely, as referred to in Question Nos. 3 and 4.