JATINDER KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner has filed this petition under Section 439 Cr.P.C. for grant of regular bail in case FIR No. 22 dated 12.7.2012 registered at Police Station Lakhewali, District Sri Muktsar Sahib, for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). Learned counsel for the petitioner contended that the petitioner in this case was in custody since 12.7.2012 and after about seven months i.e. on 12.2.2013, he filed application under Section 167(2) Cr.P.C. and under the provisions of the Act for grant of bail as challan was not presented till then. The application filed by the prosecution for extension of time was dismissed by the Court as challan was presented on 16.2.2013. Therefore, no extension of the period was granted by the Court and the application was dismissed as infructuous. Learned counsel, therefore, argued that when after 180 days, challan was not presented and the application was filed by the petitioner before the presentation of challan, then the accused -petitioner has indefeasible right to get the bail, Afterwards, presentation of challan or pendency of application for extension of time, which was not allowed by the Court, is no ground to dismiss the bail application.

(2.) ON the other hand, learned Assistant Advocate General contended that as the application was filed earlier to the bail application, which was pending in the Court and then the challan was filed on 16.2.2013 and the application was dismissed being infructuous, the bail application cannot be allowed.

(3.) THE Hon'ble Supreme Court in Sanjay Dutt v. State through C.B.I. Bombay,, 1994 (3) RCR (Cr.) 684 (5 Judges Bench), held that when investigation is not completed and challan is not put -up within 180 days under Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Section 167(2) Cr.P.C., if the accused applied for release on bail, this right is enforceable by accused only from the time of default till the filing of challan. This right does not survive on the challan being filed. In other words, the Hon'ble Supreme Court has held that if the challan has been filed after the stipulated period and no application is filed, then the accused has no right to be released on bail i.e. if the application is filed after presentation of challan and not before presentation of challan, then the accused has no right.