SURAJMAL KANAIYALAL SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner Surajmal Kanaiyalal Soni was arrested on 7-3-1988 and the prosecution case against him is that he was found in possession of about 10 Kgs. of opium at that time which was seized under a Panchnama. The investigating officer after completing the investigation submitted a report to the Court of the Judicial Magistrate First Class on 31-5-1988 under Sec. 173(2) of the Criminal Procedure Code 1973 Samples from the opium were sent to the Forensic Science Laboratory for analysis but the report from the said Laboratory was not received upto 31-5-1988 and therefore the report was submitted to the Court under sub-sec. (2) of Sec. 173 without forwarding the report of the Forensic Science Laboratory. This was done because 90 days were to expire about two days after 31-5-1988. The petitioner then moved for bail before the Court of Sessions at Vadodara. The said Misc. Criminal Application No. 320 of 1988 was heard by the learned Addl. Sessions Judge Vadodara who rejected the said application. It was contended before the learned Addl. Sessions Judge and it is also contended before us by the learned Advocate for the petitioner that as the report was submitted to the Court without the report from the Forensic Science Laboratory it was not a report (charge-sheet) as contemplated by sub-sec. (2) of Sec. 173 and therefore it cannot be said that report under sub-sec. (2) of Sec. 173 of the Code was submitted to the Court of the Judicial Magistrate within 90 days from the date of arrest and therefore the petitioner is entitled to be released on bail as of right in view of sub-sec. (2) of Sec. 167 of the Code of Criminal Procedure 1973 A request for releasing on bail was also made on merits before the learned Addl. Sessions Judge. The learned Addl. Sessions Judge by a speaking order dated 13-6-1988 rejected the application for bail. The learned Addl. Sessions Judge after referring to the submissions made before him observed in his order that ordinarily an accused is entitled to get the benefit of sub-sec. (2) of Sec. 167 Cri. Pro. Code but in the present case there was an allegation that the petitioner was found in possession of 10 Kgs. of opium and therefore it was not a fit case in which the benefit should be given to him. He also observed that even without the report of the Analyser anyone with experience may be able to say whether it was opium or not. He also observed that the papers of investigation disclosed that the substance which was found from the possession of the petitioner was opium and therefore even though the report of the Chemical Analyser was not received the petitioner was not entitled to the benefit of sub-sec. (2) of Sec. 167 I. P. C. The learned Addl. Sessions Judge dismissed the application on 13-6-1988. The petitioner has therefore filed this Misc. Criminal Application for bail agitating mainly the ground that as the report of the Forensic Science Laboratory was not received and as copy thereof was not submitted to the learned Magistrate along with the papers of investigation the report submitted to the Judicial Magistrate cannot be said to be report as contemplated by sub-sec.-(2) of Sec. 173 and that having not been done within 90 days from the date of arrest the accused is entitled to be released on bail as of right under sub-sec. (2) of Sec. 167. The matter was first placed before a learned single Judge of this Court who directed that the matter be referred to a Division Bench and that is how the matter has come up before us.

(2.) In the present case we proceed on the assumption that Sec. 107 of the Criminal Procedure Code 1973 applies to investigation with regard to offences under the Narcotic Drugs and Psychotropic Substances Act 1985 without going into the question whether that Section applies or not. If that Section applies then one thing is certain that an accused cannot be remanded to custody for more than 90 days under Sec. 167 of the Cri. Pro. Code. Before going to the discussion of this aspect we would like to mention here that the Police Officer submitted report in the prescribed form which is styled as charge-sheet. The Police Officer submitted this as a charge-sheet and the learned Judicial Magistrate also accepted the same as such on 31-5-1988 and directed that the case may be taken on the register and summons may be issued to the accused. This shows that the learned Judicial Magistrate accepted the report of the Police Officer as a charge-sheet and took cognizance of the offences mentioned therein and issued process. The act of the learned Judicial Magistrate issuing process has not been challenged by filing any application for quashing the proceedings before this Court. In this application for bail it is not permissible for us to go behind the action of the learned Judicial Magistrate in taking cognizance of the offences mentioned in the charge-sheet. Then the Police Officer submitted the report as a charge-sheet as contemplated by sub-sec. (2) of Sec. 173 and the learned Judicial Magistrate also accepted the same as such if we go into this question in an application for bail then we will be going behind the order of the learned Magistrate whereby he took cognizance and ordered summons to be issued. That is not permissible in an application for bail. If the learned Judicial Magistrate had not taken cognizance of the offences and had not treated the charge-sheet as a report under sub-sec. (2) of Sec. 173 of the Code then different considerations would arise because in that case it can be said that the learned Judicial Magistrate did not treat the same as 8 report under sub-sec. (2) of Sec. 173. But here the position is quite different as stated above. Apart from this the record and proceedings which have been received by us show that the learned Judicial Magistrate has already passed an order committing the accused to the Court of Sessions and the case is registered before the Court of Sessions at Vadodara as Sessions Case No. 86 of 1988. It appears that the committal order has been passed by the learned Judicial Magistrate on 21-6-1988. The learned Sessions Judge has forwarded to us copy of the report of the Forensic Science Laboratory which appears to have been received by the Police Officer on 27-6-1988. The said report shows that the person. take of morphine in the three pieces sent to the Forensic Science Laboratory was 1.06 % 2.7 % and 2.3 % respectively. This percentage exceeds the percentage of 0.2 which is the minimum necessary for bringing the substance within the definition of opium as defind by the Narcotic Act as well as by the Prohibition Act. When the charge-sheet was accepted by the learned Judicial Magistrate as report under Sec. 173(2) Cri. Pro. Code and when the learned Judicial Magistrate took cognizance and then committed the case to the Court of Sessions and when the case is now pending before the Court of Sessions it will not be permissible for us to go into the question whether the report which was submitted by the police to the learned Judicial Magistrate on 31-5-1988 was a report as contemplated by sub-sec. (2) of Sec. 173 of the Code. Therefore we do not propose to go into the question in this application for bail whether the report submitted by the Police Officer on 31-5-1988 was a report as contemplated by sub-sec. (2) of Sec. 173 of the Code. We will proceed on the assumption that the report submitted to the learned Judicial Magistrate by the Police Officer which was accepted as such was a report as contemplated by sub-sec. (2) of Sec. 173 of the Code. We do not express any opinion on the question whether this report submitted to the learned Judicial Magistrate without a copy of the report of the Forensic Science Laboratory can be said to be a report as contemplated by sub-sec. (2) of Sec. 173 or not.

(3.) The above discussion will show that so far as this particular case is concerned the petitioner cannot be allowed to contend before this Court in this application for bail that what was submitted on 31 to the Court of the learned Judicial Magistrate by the investigating officer was not a report as contemplated by sub-sec. (2) of Sec. 173 of the Code. Once we proceed on the assumption that such report was submitted to the learned Judicial Magistrate and the learned Judical Magistrate took cognizance of the offences mentioned in the charge-sheet and directed process to be issued on 31-5-1988 further detention of the accused in judicial custody from time to time after 31 will be governed by Sec. 309 and not Sec. 167 of the Criminal Procedure Code. What sub-sec. (2) of Sec. 167 of the Code prohibits is not to remand the accused to custody beyond the period of 90 days. Once the report is submitted under sub-sec. (2) of Sec. 173 and the offence is registered and cognizance is taken by the learned Magistrate the provisions of sub-sec. (2) of Sec. 167 cannot be invoked. In view of this the application for bail on the ground that the petitioner is entitled to be enlarged on bail in view of the provisions of sub-Sec. (2) of Sec. 167 of the Code is bound to Jail.