MALKIAT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE present petition has been filed by the petitioner under Section 167(2) read with Section 439 of the Code of Criminal Procedure for the grant of regular bail during the pendency of the trial of the case arising out of FIR No. 33 dated 10.3.2013 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') registered at Police Station Ahmedgarh, District Sangrur.

(2.) THE aforementioned FIR was registered on the basis of ruqa drafted by ASI Gurmej Singh. He mentioned therein that on 10.3.2013 he, alongwith ASI Gorakh Nath, HC Amrik Singh and PHG Shingara Singh, was present in connection with Nakabandi at T -point Jandali Khurd. At about 8.45 a.m. a scooter bearing registration No. PB -28C -1430 came from the side of Jagera bridge and was being driven by a Sikh person. ASI Gurmej Singh gave a signal to the scooterist to stop. However, the scooterist abruptly tried to escape with the scooter in the direction from which he was coming. ASI Gurmej Singh alongwith his fellow officials overpowered him and asked about his name and address. He replied that he was Malkiat Singh son of Chand Singh caste Tailor and resident of Kaheru, Police Station Dhuri. He had kept a bag of black colour and having side pockets of blue colour on his scooter. ASI Gurmej Singh introduced himself to the scooterist and stated about suspicion against him of carrying some intoxicant in the bag carried on his scooter and, therefore, his person, the scooter and the black bag were required to be searched. He further informed the scooterist that he had a legal right to get himself, his scooter and the black bag searched in the presence of a Gazetted Officer or a Magistrate who could be called at the spot. After pondering over the matter for some time, the scooterist replied that he had trust upon ASI Gurmej Singh, who could effect his search as well as that of his scooter and the black bag. Requisite consent memo. was prepared which was signed by the scooterist. On search of the black bag, 335 packets of Phenotil, each containing 100 tablets, 285 packets of Parvon spas, each containing 10 capsules, 18 packets of Carisoma, each containing 10 tablets and 14 vials of Rexcof, each containing 100 mls. were recovered. Requisite samples were drawn and duly sealed. As the petitioner did not have any licence to keep in his possession various intoxicating tablets, capsules and liquid, he was found to have committed the offence under Section 22 of the Act. The petitioner was arrested.

(3.) LEARNED counsel for the petitioner has submitted that as the prosecution had failed to present the challan within the stipulated period of 180 days, the petitioner was entitled to be released on bail in view of the provisions contained in Section 167(2) Cr.P.C. read with Section 36A(1)(b) of the Act. Further, the right of the petitioner to be released on bail on account of default on the part of the prosecution in presenting the challan within the stipulated period could not be taken away by filing the application dated 2.9.2013 (Annexure P -2) as no reasons were mentioned therein as to why the challan could not be presented in time. Further, no notice of the said application was issued to the petitioner. Therefore, the right of bail as enshrined under Section 167(2) Cr.P.C. could not be defeated by subsequent presentation of the challan. In this regard, he has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau and another, : (2009) 17 SCC 631and unreported judgments of this Court in Nardev Inder Singh Vs. State of Punjab CRM M -3339 of 2014 decided on 4.2.2014, Shinder Kaur Vs. State of Punjab CRM M -40440 of 2013 decided on 8.1.2014 and Gurpreet Singh Vs. State of Punjab CRM M -38972 of 2013 decided on 13.12.2013. Prayer has, accordingly, been made for the release of the petitioner on bail during the trial of the case.