PARDEEP KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER Pardeep Kumar was arrested on 28.6.1994. He is alleged to have had in his possession 5.20 Kg. of opium and therefore, an FIR was lodged under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985. He was produced before the concerned Magistrate on 29.6.1994 and continues to be in detention. The charge-sheet against the petitioner was filed on 7.11.1994.

(2.) THE petitioner filed an application for bail before the learned Sessions Judge, Faridkot, alleging among others the ground that the charge-sheet against him was not filed within 90 days of his arrest and, therefore, he should be released on bail as prescribed in Section 167(2) of the Code of Criminal Procedure. The learned Sessions Judge, relying upon the decision in Rafiq Mohamad v. The State of Punjab, 1994(3) RecentCR 198, agreed with the contention of the prosecution that even if the charge-sheet was not filed within 90 days as prescribed, the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 has no right to be released on bail as the power of the Court to grant bail under Section 439 Cr.P.C. is subject to the restrictions imposed by Sections 37 of the said Act. Therefore, the bail application filed by the petitioner was dismissed by the learned Sessions Judge, on 31.10.1994 (vide annexure P-1). The petitioner then filed Cr. Misc. No. 19026-M of 1994 before this Court and that application was dismissed by me agreeing with the view of the learned Sessions Judge. Of course, I disposed of that petition on 8.12.1994 observing that the same was being dismissed at that stage.

(3.) THE learned counsel for the petitioner, on the other hand, relied upon the decision of this Court in Bajrang v. State of Haryana, 1995(3) RecentCR 536, wherein Justice Satpal held that where the challan is put up after 90 days from the date of remand of the accused, and also subsequent to the filing of the application for the grant of bail, the accused cannot be deprived of the concession of bail. That was also a case arising under the Narcotic Drugs and Psychotropic Substances Act, 1995. The learned counsel for the petitioner also relied upon the decision of this Court in Ajit Singh v. State of Punjab, 1994(2) RecentCR 279. That was a case where the accused was arrested under the Narcotic Drugs and Psychotropic Substances Act and remanded to custody. The charge sheet was presented before the Court after the expiry of 90 days from the date of taking of the accused into custody. It was held that the subsequent presentation of the charge sheet does not defeat the right of the accused to be released on bail. Lord Justice A.P. Choudhari, in delivering this judgment, referred to the decision of Hon'ble Supreme Court in Raghubir Singh v. State of Bihar, 1987 Cr. L.J. 157. The Hon'ble Supreme Court in this case has held that an order of release made under proviso to section 167(2), Cr.P.C. is not defeated by lapse of time, the filing of the charge sheet or by remand to custody under Section 309(2). This decision of the Supreme Court, of course, did not relate to a case arising under the Narcotic Drugs and Psychotropic Substances Act.