GOPI JINDAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present revision petition has been filed impugning order dtd. 9/11/2021 passed by the learned Additional Sessions Judge, S.A.S. Nagar, Mohali, whereby the application filed by the petitioner seeking default bail under Sec. 167 (2) Cr.P.C. has been dismissed.

(2.) Learned counsel for the petitioner has submitted that the learned Additional Sessions Judge, Mohali, while dismissing the application filed by the petitioner for default bail has erred on the facts of the case and default bail being statutory right, the petitioner was entitled to be released on bail after completion of 60 days from the date of his arrest. He has submitted that FIR in the present case was registered against the petitioner under Sec. 22 of the NDPS Act; Sec. 420 of the Indian Penal Code and Sec. 13 of the Punjab Gambling Act, 1867. He submitted that so far as provisions of Sec. 420 IPC and Sec. 13 of the Punjab Gambling Act, 1867, are concerned, the maximum sentence provided is less than 10 years and so far as these provisions are concerned, in case the challan is not presented within a period of 60 days, the petitioner is entitled to statutory bail. So far as provisions of Sec. 22 of the NDPS Act are concerned, in the present case the alleged confiscated contraband was of non-commercial quantity and the sentence provided under Sec. 22 (b) of the NDPS Act, extends to 10 years and therefore, qua the aforesaid offence also, the police was under an obligation to submit the challan within 60 days and in case challan was not presented within 60 days, the petitioner was entitled for the grant of statutory bail. He submitted that the learned Additional Sessions Judge, Mohali, did not appreciate the facts of the case in true perspective and bail application of the petitioner has been dismissed on the ground that quantity of alleged seized contraband was commercial in nature and had also relied upon the statement of the investigating officer in this regard and on that basis application of the petitioner for default bail has been dismissed. The learned counsel further submitted that the petitioner was arrested on 28/8/2021 and 60 days expired on 27/10/2021 and therefore, the petitioner was entitled for default bail immediately on the next day. He submitted that challan in the present case has still not been presented and thereafter FSL report has also been obtained in which it is stated that salt of confiscated contraband was lomotil i.e. diphenoxylate hyrdochloride and atropine sulphate and as per the FSL report the average weight of 1 tablet was 63 mg/tablet and that confiscated quantity of tablets was 560 tablets and the total weight comes to 35.28 grams whereas commercial quantity as per the schedule under NDPS Act, is 50 grams and therefore, it was not a case of commercial quantity. He submitted that in view of the aforesaid factual position, the petitioner is entitled for the grant of default bail and the impugned order dtd. 9/11/2021 passed by the learned Additional Sessions Judge, Mohali, is liable to be set aside.

(3.) Mr.Randhir Singh Thind, learned Deputy Advocate General, Punjab, has submitted that in pursuance of the order passed by this Court on 15/11/2021, he had sought information regarding the investigating officer who had informed the learned Additional Sessions Judge, that the quantity recovered was commercial in nature and he has instructions to state that said investigating officer SI Sukhmander Singh has since been dismissed from service in some other case on 9/11/2021 and therefore, another investigating officer namely ASI Dharampal has come present in the Court and he has received instructions from him. As per the instructions and from the perusal of the FSL report, it is clear that confiscated quantity was 35.28 grams which does not fall in the category of commercial quantity.