AKHLAK Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) By this petition under S. 439 read with S. 167(2) of the Code of Criminal Procedure the applicants who have been arrested by the Police Mandideep in connection with Crime No. 227/98 for committing offences punishable under Ss. 467, 471, 478, 487 read with S. 109, I.P.C. and Ss. 34, 36 and 39 of M.P. Excise Act have prayed for grant of bail.

(2.) Undisputedly, the accused persons were arrested on 27-12-1998 for transporting illicit liquor. The prosecution case is that the applicants in a tanker of Indian Oil Company which is generally used for carrying and transporting L.P.G. were transporting the liquor without any authority. The prosecution case is that the accused persons and others after forging certain documents used the same for transporting the liquor and as each of them was involved in commission of the crime, they were required to be arrested. Undisputedly, the accused persons were arrested on 27-12-1998. It is also not in dispute before me that up to 12-5-1999 i.e. the date of the order passed by the learned Sessions Judge, Raisen challan was not filed. At a request made by Shri Jain, learned counsel for the applicants, I enquired from the Session Judge, Raisen as to whether challan was filed or not Shri Shirpurkar, Addl. Registrar (Judicial) after making the enquiries informed me that up to 29th of July, 1999 challan was not filed before the competent Court.

(3.) The applicants filed an application under S. 167(2), Cr. P.C. before the trial Court inter alia pleading that as they were in custody for more than 90 days and as the challan was not filed, the applicants were entitled to be released on bail, in view of S. 167(2) of the Code of Criminal Procedure. The learned trial Court rejected the said application on 12-1-1999 observing that without pursuing the case diary, it would not be proper to direct release of the applicants. Being dissatisfied by the said order, the applicants preferred an application before the Session Judge who found that the accused persons were arrested on 26-12-1998 and were in judicial custody from 27-12-1998. He found and it is undisputed fact, that within the period of 90 days and up to the date of his order challan was not filed by the Police. He also found that the police did not file challan up to the date of his order before the competent Court. The learned Session Judge observing that an order passed under S. 167(2) of Cr. P.C. is an order in default and if such an order is passed in favour of the accused the Court granting the application as a right to recall the grant of bail under S. 439(2) of Cr. P.C. Referring to the merits of the case, the learned Judge found that the accused persons who were transporting illicit liquor would not be entitled to be released on bail. Referring to the judgment reported in 1993 JLJ 29, it observed that in a case under Ss. 8/18 read with S. 37 Narcotic Drugs and Psychotropic Substances Act (for short 'N.D.P.S.') even if the challan was not filed the accused would not be entitled to bail under S. 167(2). Further placing reliance upon the judgment of the Supreme Court in the matter of Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) and Rajnikant v. Intelligence Officer Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 : (1990 Cri LJ 62) it held that though the accused are entitled to be released under S. 167(2) but bail cannot be granted to them under S. 439(2) of Cr. P.C. Being aggrieved by the order passed by the learned Session Judge, the applicants have filed this petition under S. 439, Cr. P.C. read with S. 167(2) inter alia pleading that as the prosecution did not file the challan up to the date of order, the Court below was unjustified in rejecting the application, illegally applying the provisions of S. 439(2) of Cr. P.C.