JASWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) JASWINDER Singh and Bir Singh petitioners have filed the instant petition under section 439 Cr.P.C. read with Section 167(2) Cr.P.C. for the grant of regular bail to them in a case bearing FIR No. 143 dated 20.10.2003 registered under section 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short 'the Act'), at Police Station, Sangat. I have heard Mr. S.S. Sidhu, learned counsel for the petitioners and Ms. Sonia Virk, learned Assistant Advocate General, Punjab. With their assistance, I have also gone through the entire record. The concerned police official is also present with the complete police file. Mr. Sidhu contends that the present petitioners were not apprehended at the spot and no recovery had been effected from the petitioners; that they have been booked subsequently on the basis of the statement of one Sohan Singh, recorded under Section 161 Cr.P.C. on 1.1.2004, in which it has been stated that the present petitioners had made an extra judicial confession before him on 9.12.2003, showing their involvement in the present case. According to the learned counsel, the FIR is dated 23.10.2003, the so-called extra judicial confession is shown to have been made on 9.12.2003, whereas the statement of Sohan Singh, is recorded on 1.1.2004. This fact, by itself, is sufficient to show that the case of the prosecution qua the present petitioners is not made out.

(2.) ANOTHER ground on which the learned counsel relies very heavily is that the prosecution agency had no evidence against the petitioners and for this reason, the challan was not presented against the petitioners even after the lapse of 180 days. The learned counsel contends that after the lapse of the stipulated period, an application was moved by the petitioners on 24.1.2005 praying therein that the petitioners were entitled to bail as a matter of right under the provisions of Section 167(2) Cr.P.C. on account of the aforesaid lapse and since no report was submitted by the Public Prosecutor indicating the progress of the investigation, requested for the extension of the time beyond the said period of 180 days mentioning the specific reasons, thus valuable right has accrued to the petitioners for the grant of bail. According to the learned counsel, the application of the petitioners has been declined by the learned special Court, Bathinda, vide impugned order dated 2.2.2005 without any basis.

(3.) IN support of the aforesaid submissions. Mr. Sidhu relied upon the judgment of this Court rendered in Criminal Misc. No. 6355-M of 2004 titled as Iqbal Singh v. State of Punjab, decided on 1.4.2004 and a judgment of a Division Bench of Calcutta High Court rendered in Subodh Kundu v. State of Calcutta, 2004(3) RCR(Criminal) page 117. Mr. Sidhu then submits that once the challan was not filed within the stipulated period, accused gets an indefeasible right to get bail and subsequent filing of the challan during the pendency of the bail application, will not extinguish the said right. In the instant case also, the bail application was moved on 24.1.2005 and the challan was filed on 25.1.2005, therefore, the right had accrued to the petitioner on 24.1.2005 itself. In support of his contention, Mr. Sidhu relied upon a judgment of the Hon'ble Apex Court rendered in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Criminal) 452 (SC).