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Judgment
Gagandeep Kumar Alias Gagandeep Singh Alias Gagan, accused in criminal case arising out of FIR No.92 dated 06.12.2019 under Sections 22 and 29 Narcotic Drugs and Psychotropic Substances Act, Police Station Rawalpindi, District Kapurthala, has filed this petition under Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 for quashing of order dated 18.08.2022 of learned Judge Special Court, Kapurthala declaring him a “proclaimed offender”.
Learned counsel for the petitioner submits petitioner was booked by the police in aforementioned FIR and was allowed concession of interim regular bail by learned trial Court. Challan was presented in petitioner’s absence and learned trial Court issued notice for his appearance but petitioner went abroad on 30.01.2020 and returned only on 28.03.2026. Learned trial Court initiated proclamation proceedings under Section 82 Cr.P.C on 09.03.2022. Though, the Court was well aware that petitioner was not in India, no recourse to Section 105 Cr.P.C. was made to procure presence of the petitioner through diplomatic process and impugned order dated 18.08.2022 was liable to be set aside on this ground alone. He further argued that the proclamation was issued on 07.07.2022 and was published the same day. On 07.07.2022, the case was adjourned to 18.08.2022 for awaiting presence of the petitioner. Adjournment of the case from 07.07.2022 to 18.08.2022 was not sufficient compliance of Section 82(1) Cr.P.C. Therefore, impugned order dated 18.08.2022 declaring the petitioner a ‘proclaimed offender’ was liable to be set aside.
Notice of Motion.
Mr. Akash Yadav, AAG, Punjab, accepts notice on behalf of respondent-State. He submits that despite publication of the proclamation, petitioner failed to appear before learned Judge Special Court, Kapurthala and was rightly declared proclaimed offender. Supporting the order of learned trial Court dated 18.08.2022, he prayed for dismissal of the petition.
Copy of order dated 16.01.2020 of learned Judge Special Court, Kapurthala reveals that petitioner was found in conscious possession of 55 grams of intoxicant powder. Relevant portion of order dated 16.01.2020 of learned Judge Special Court, Kapurthala granting interim bail is as under:-
“…………
4)As per the FIR, the accused Gagandeep Kumar @ Gagan was found in his conscious possession of 55 grams of intoxicant powder. Applicant/accused is in custody since 06.12.2019. Recovery has already been affected from his possession. The reminder was sent to FSL to expedite report but the same has not been received till date. The applicant/accused is not required for further investigation of the case. The presentation and disposal of challan is likely to take considerable time. No useful purpose would be served by detaining the accused behind the bars and rather it would be a burden upon the State exchequer. As the report of FSL has not been received despite sending the reminder to expedite the report, therefore, the applicant/accused Gagandeep Kumar @ Gagan is ordered to be released on interim bail in this case on his furnishing personal bonds in the sum of Rs.One Lac with one surety in the like amount subject to the conditions that he will appear in the Court on each and every date of hearing, he will not tamper with the prosecution evidence, he will not leave India without prior permission of this Court and shall surrender in the Court, in case, the recovered quantity of intoxicant powder is found to be commercial on receipt of the report of the Chemical Examiner. Bail application is allowed accordingly. Bail application be attached with the main case file/remand papers.”
Petitioner violated order of learned Judge Special Court, Kapurthala and left the country on 30.01.2020 to return on 28.03.2026 that too, through Nepal to avoid detection. The argument that petitioner who was abroad, was wrongly declared a proclaimed offender without recourse to Section 105 Cr.P.C., thus would not be available to the petitioner. That petitioner willfully absconded from jurisdiction of the Court, in violation of the order of bail, is writ large and the Court is unable to accept the argument that impugned order is liable to be set aside as the proclamation was not published at the place where petitioner was ordinarily residing.
However, there is one technical flaw in the order declaring petitioner a ‘proclaimed offender’. As is apparent from order dated 18.08.2022, the proclamation in this case was issued for 07.07.2022 and was published on 07.07.2022. Clear 30 days were not afforded from the date of publication of the proclamation. The period between publication of proclamation and the specified date of hearing being less than 30 days (0 day), petitioner could not have been declared a proclaimed offender and proclamation was required to be reissued and published again. Since period of 30 days had not elapsed, the case was adjourned from 07.07.2022 to 18.08.2022 awaiting presence of the petitioner. On 18.08.2022, petitioner was declared a ‘proclaimed offender’. Adjournment of the case from 07.07.2022 to 18.08.2022 would not cure the inherent defect in the proclamation proceedings and it cannot be said that mandate of Section 82(1) Cr.P.C. was complied with. Thus, in view of ratio laid down by this Court in Ashok Kumar Vs. State of Haryana and Another. 2013 (4) RCR (Criminal) 550 and Navneet Sharma Vs. State of Punjab and Others, 2024 NCPHHC 10973, it is held that the trial Court failed to adhere to provisions of Section 82(1) of Cr.P.C.
There is another aspect of the matter. The offences involved against the petitioner i.e. Sections 22 and 29 Narcotic Drugs and Psychotropic Substances Act are not the ones specified in Section 82(4) Cr.P.C. Therefore, petitioner could not have been declared proclaimed offender but a “proclaimed person” or “absconder”. On this ground too, impugned order is vitiated.
Consequently, impugned order of learned Judge Special Court, Kapurthala dated 18.08.2022 declaring the petitioner a “proclaimed offender” cannot be sustained in law and is hereby set aside and quashed, subject to payment of costs of Rs.1,00,000/- to be deposited by petitioner in Poor Patient Welfare Fund, Postgraduate Institute of Medical Education and Research (PGIMER), Chandigarh within 1 month from today. Petitioner is directed to surrender before learned Judge Special Court, Kapurthala, within a period of 1 month from today and move an application for regular bail which learned trial Court shall decide independently, considering the quantity of contraband allegedly recovered, the report of FSL and the provisions of the Narcotic Drugs and Psychotropic Substances Act.
It is, however, clarified that in case petitioner fails to appear before learned trial Court within the stipulated time or fails to deposit the costs, the petition shall be deemed to be dismissed.
The petition is allowed, on the terms above.
Pending miscellaneous applications, if any, stand disposed of.