Gurwinder Singh vs State of Punjab

Navita Singh, J.—The present petition has been filed u/s 36(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the Act) read with Section 167(2) of the Code of Criminal Procedure (for short Cr.P.C.) for grant of bail in FIR No. 155 dated 01.10.2013 under Sections 21 of the Act pertaining to Police Station Sarhali District Tarn Taran.

The facts of the case need not to be gone into as bail is being sought on the ground that charge-sheet was not filed by the police within the stipulated period.

It may be mentioned here that the period of 180 days was expiring on 29.03.2014 and the prosecution applied for extension of time to complete the investigation on 28.03.2014. It was pleaded therein that on account of the report of Chemical Examiner, Kharar having not been received, it was not possible to file the charge-sheet within the stipulated period Number of reminders had been written to Superintendent of Police, Tarn Taran for getting the needful done but to no avail. On account of the said reason, the prosecution had to apply for extension of time. The said application and also the application of the petitioner for grant of bail u/s 167(2) Cr.P.C. was decided on 17.04.2014 by the Special Judge, Tarn Taran. The period for investigation was extended by two and half months and the application of the present petitioner for bail was declined.

Learned counsel for the petitioner argued that it was held by Hon''ble the Supreme Court in Sayed Mohd. Ahmed Kazmi Vs. State, GNCTD and Others, that the order for extension of time for investigation could not be passed with retrospective effect. In the said case, application was moved by the accused u/s 167(2) Cr.P.C. which was kept pending by the Chief Metropolitan Magistrate and before the next date, the Public Prosecutor filed an application for extension of period of custody and investigation. The Magistrate dismissed the application for bail and allowed extension for a further period of 90 days, with retrospective effect from 02.06.2012. The accused had moved the application for bail on 17.07.2012. Learned counsel for the petitioner argued that in the present case also, the prescribed period had expired on 29.03.2014 but the order for extension was passed on 17.04.2014, meaning thereby that extension was granted retrospectively and the order was thus not sustainable.

Learned counsel appearing for the State, on the other hand, contended that in the case mentioned by learned counsel for the petitioner, application for extension was filed by the Public Prosecutor after application for bail had been filed by the accused. In the present case, the application was filed earlier and also before expiry of the statutory period of 180 days. He argued that the present case was therefore distinguishable and there is no infirmity in the impugned order.

Learned counsel for the petitioner argued that since the Court below could not have passed the order of extending time of custody and investigation with retrospective effect, it becomes immaterial as to when the application by the prosecution or by the accused was filed. He went on to submit that it was for the prosecution to see in advance that the filing of the charge-sheet was being delayed and, therefore, the application for extension should have been filed a few days earlier so as to get an order from the Court before 180 days had expired. The delay in filing the application cannot be ignored. He stated that the application was moved one day prior to the deadline which did not absolve the prosecution of its duty to apply for extension a few days earlier.

Undoubtedly, the fact that the application for bail was filed and the Public Prosecutor had moved for extension prior to that, is distinguishable from the reported case, yet Hon''ble the Supreme Court having categorically held that the order of extension could not be passed retrospectively, the respondents could not derive any benefit from the impugned order. The learned Special Judge could not have granted extension from back date and it was for the Public Prosecutor to have moved the application well within time.

The petition is allowed and the petitioner is held entitled to bail u/s 167(2) Cr.P.C. It goes without saying that this order is not to be taken as any expression of opinion on the merits of the case. Bail to the satisfaction of the trial Court/Vacation Judge.

Disposed of.