RAKESH KUMAR JAIN, J.
The question involved in this case is as to “whether under Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short “NDPS Act”], a period of 6 months is to be considered or 180 days for giving benefit to the accused under the default clause”?
The petitioner has applied for bail under Section 167(2) of the Code of Criminal Procedure, 1973 [for short “Cr.P.C”] read with Section 36A of the NDPS Act in the case registered vide FIR No. 21 dated 04.07.2010, under Sections 15/61/85 of the NDPS Act at Police Station Sandour, District Sangrur.
In short, the allegation against the petitioner is that 10 bags of poppy husk weighing 30 Kgs. each were recovered from his possession and his co-accused Iqbal Khan.
Learned counsel for the petitioner has submitted that the petitioner was arrested on 04.07.2010 and was sent to jail on 05.07.2010 In this regard, he has placed on record a custody certificate (Annexure P-2) to indicate that the petitioner is in sub jail Malerkotla and has entered in Register No. 1 of the under trials at Sr. No. 4518 dated 05.07.2010 It is further contended that the challan has been presented on 04.01.2011 The petitioner filed an application for bail before the learned Trial Court under Section 167(2) of the Cr.P.C read with Section 36A(4) of the NDPS Act for bail on the ground that the challan has not been presented within the statutory period of 180 days but his application was dismissed by the Special Judge, Sangrur on 18.01.2011 on the ground that the challan has been presented within 6 months from the date of arrest of the petitioner, therefore, he was not held entitled for bail under the default clause.
Learned counsel for the petitioner has submitted that in Section 36A(4) of the NDPS Act, the word used by the Legislature is “one hundred and eighty days” for the purpose of presentation of challan and not six months. He further submitted that since the challan has not been presented within the statutory period, therefore, the petitioner has acquired an indefeasible right in his favour for grant of bail. In this regard, he has relied upon a decision of the Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra, AIR 2001 Supreme Court 1910. He has also relied upon a decision of the Supreme Court in the case of State of Maharashtra v. Mrs. Bharati Chandmal Varma alias Ayesha Khan, AIR 2002 Supreme Court 285 to contend that after the expiry of the statutory period of filing of challan, further custody of the accused becomes unauthorized and he enjoys a right to be released on bail if he is prepared to furnish bail bonds.
Learned State Counsel, in his reply, has submitted that the period of 180 days would mean six months and if the challan is presented within the period of six months, then no right would accrue to the petitioner to claim benefit of default clause.
I have heard both the learned counsel for the parties and perused the record with their able assistance.
There is no dispute that the petitioner was arrested on 04.07.2010 and was sent to judicial custody on 05.07.2010 Admittedly, the challan has been presented on 04.01.2011 after the expiry of 180 days much-less on the 183rd day. In order to appreciate the controversy, it would be relevant to refer to Section 36A(4) of the NDPS Act, which reads as under:
“36A. Offences triable by Special Courts.—
(1) to (3) xxx xxx xxx
(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, have they occur, shall be construed as reference to “one hundred and eighty days”:
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.”
According to the aforesaid provision, in an offence involving commercial quantity, the police is obliged to file report under Section 173 Cr.P.C (challan) within a period of 180 days and if the it is not possible for the police to complete the investigation within the said period of 180 days, they may seek extension of the period upto one year on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for detaining the accused beyond the period of 180 days. The Legislature has not used the word “six months” anywhere in this provision, rather the word “one hundred and eighty days” has been specifically and repeatedly used which means that in the case of default of filing of challan within a period of 180 days, the accused would have an indefeasible right to be released on bail. Thus, the learned Special Judge was grossly in error in dismissing bail application of the petitioner on the ground that the challan has been filed within six months, whereas it has been admittedly filed on the expiry of 180 days, i.e 183 day from the date of arrest of the petitioner.
In view of these facts and circumstances, the question posed in the beginning of this order is answered in affirmative to the effect that the period of 180 days is to be counted and not six months in case of presentation of challan under Section 36A(4) of the NDPS Act.
The petition is, thus, allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds alongwith two heavy sureties in the like amount to the satisfaction of the learned Trial Court.
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