RAMESHBHAI GANDABHAI CHUNARA Vs. SUPERINTENDENT OF CUSTOMS

JUDGEMENT

(1.) Aggrieved by the order dated 3-1-1996 passed by the learned Additional City Sessions Judge, Court No. 13, Ahmedabad, by which Criminal Misc. Application No. 3350 of 1995 moved under proviso to Section 167(2) of Criminal Procedure Code ('the Code' for short) came to be rejected, the petitioner/accused has filed this Revision Application. It would be pertinent to note that initially the petitioner filed Misc. Criminal Application with a request to grant bail but during the course of hearing the same was converted into Revision Application as legality of the order passed by the lower court is under challenge. The petitioner has prayed for setting aside impugned order and grant of bail on appropriate terms.

(2.) As averred, the petitioner has been charged for commission of offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act" or 'the Act' for convenience and brevity). As the prosecution did not complete investigatin and file charge-sheet within the stipulated period as prescribed under Section 167(2) of the Code the petitioner moved application for bail popularly known as "default bail" or "compulsive bail" but the same was rejected. In order to appreciate the contention, it would be worthwhile to place on record relevant dates of some of the important events which go to the roots of merits. The petitioner was arrested on 19-9- 1995 and was sent to judicial custody on 20-9-1995. Thus, period of 60 days expired on 18-11-1995. First bail application being Criminal Misc. Application No. 3241 of 1995 was filed on 6-12-1995 and decided on 14-12-1995. Second application for bail, i.e. Criminal Misc. Application No. 3350 of 1995 was filed on 20-12-1995 and decided on 3-1-1996. Both these applications were rejected. The charge-sheet was submitted on 12-12-1995.

(3.) Since the question pertains to default bail and failure on the part of prosecution to complete investigation within stipulated period of 60 days or 90 days, as the case may be, it would be necessary to clarify the statutory period applicable in this case, though it is not relevant for the purpose of deciding the controversy. The petitioner has alleged that he is charged for offence under Section 20(b)(i) of the Act which provides punishment for a period which may extend to 5 years and fine which may extend to Rs. 50,000/-. If this is true then the statutory period during which the investigation is required to be completed and charge-sheet to be submitted would be 60 days as provided under Section 167 (2) proviso (a)(ii). Of course, in Criminal Misc. Application No. 3350 of 1995 and order passed the offence alleged to have been committed is mentioned as under Section 20 of the Act. But in paragraph 1 of the first bail application, i.e. Criminal Misc. Application No. 3241 of 1995 the petitioner has referred to offence alleged to have been committed under Sections 20 and 22 of the Act. If the petitioner is also charged for offence under Section 22 of the Act then the statutory period available to the prosecution lor completion of investigation would be 90 days as provided under Section 167(2) proviso (a)(i) of the Code and thus a doubt is created. Since none of the parties has clarified this aspect, without expressing my opinion about the statutory period available to the prosecution for completion of investigation I proceed with the assumption that the petitioner is charged for commission of offence only under Section 20(b)(i) of the Act which provides for imprisonment for a period of 5 years and thus proceed with assumption that the charge-sheet should have been filed within the period of 60 days. Undisputedly, the petitioner was arrested on 19-9-1995 and was sent in judicial custody on the very next day, i.e., 20-9-1995. Now, proceeding on assumption as above, period of 60 days expired on 18-11-1995. Admittedly, the charge-sheet was submitted on 12-12-1995. Thus, undisputedly was submitted beyond the statutory period. First application for bail being Criminal Misc. Application No. 3241 of 1995 was moved on 6-12-1995 and decided on 14-12-1995. Thus was admittedly filed before charge- sheet was filed but decided after the charge- sheet was submitted. Admittedly, second bail application was preferred and disposed of after the charge-sheet was submitted. In the background of these facts, Mr. Keshwani, learned Advocate for the petitioner, has raised following points: