HIRA LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY the instant criminal second bail application under Sec. 439 read with Sec. 167 (2) Crpc, petitioner Hira Lal seeks bail on the ground that for a period of 60 days from the date of his production before the Magistrate, the police failed to file the challan and, therefore, the applicant filed an application seeking bail on the ground that the Magistrate is not competent to authorise detention of the petitioner after 60 days from the date he was initially produced before the Magistrate. The bail application filed by the applicant came to the rejected by the learned Sessions Judge vide order dated 1. 12. 2004 holding therein that the period for filing the challan is 90 days and not 60 days.

(2.) I have heard learned counsel for the petitioner and the Public Prosecutor for the State. Carefully gone through the order impugned and the police investigation diary (case diary ).

(3.) IN the instant case, the offence alleged against the accused-petitioner is under Sec. 8/15-B of the NDPS Act, which is punishable with rigorous imprisonment for a term which may extend to 10 years and a fine of one lakh rupees. Thus, for this offence, and accused person can be punished with the rigorous imprisonment varying from minimum to maximum for a term upto 10 years, but cannot be punished for a terms more than 10 years. The case of the petitioner falls under proviso (ii) to sub-sec. (2) of Sec. 167 of the Code. Admittedly, the police failed to complete investigation and filled the challan against the petitioner for a period of 60 days from the date of his initial production before the Magistrate authorising his detention. The offence punishable is with rigorous imprisonment "upto ten years", as provided under proviso (ii) to sub-sec. (2) of Sec. 167 of the Code and "not more than ten years" as provided in proviso (i) to sub-sec. (2) of Sec. 167 of the Code wherein the expression "not less than 10 years" would mean 10 years or more. There is distinction between the expressions "upto ten years" and "not less than ten years. " Wherever the clause provides the sentence "upto ten years. " and "not less than ten years. " Wherever the clause provides the sentence "upto ten years", it would be discretion of the Court trying the offence to sentence the accused before it for a period upto ten years or any period less than 10 years. IN the case where the punishment is provided "not less than then ten years", in those case the Court trying the offence will have no jurisdiction to award lesser sentence then ten years and can award the sentence of 10 years or more.