Sunil Kumar vs State of Punjab

K. S. Kumaran, J.

F.I.R. No. 59 dated 2.4.1999 under Sections 18, 61 and 85 of the N.D.P.S. Act has been registered at Police Station City, Moga wherein the following allegations have been made :

A person was coming on foot who, when questioned disclosed his name as Sandeep Kumar (petitioner herein). Since it was suspected that he was having in his possession some intoxicating material, he was informed accordingly. An offer was made that he could be searched in the presence of a Gazetted Officer or a Magistrate. On his willingness to be searched before a Gazetted Officer, consent memo was prepared. Then in the presence of the S.P. (D), who was called to the spot and who had also got the consent of the petitioner, search was conducted and two kilograms of opium was recovered in a cloth tied to his waist.

The petitioner approached the learned Additional Sessions Judge, Moga for bail relying upon the provisions of Section 167(2) Cr.P.C. on the ground that the chargesheet had not been presented into Court within 90 days of the arrest of the accused. The learned additional Sessions Judge has pointed out that after a perusal of the police file and the chargesheet, it was seen that 90 days period had expired on 30.6.1999, but the chargesheet had been presented on 25.6.1999 before the Incharge Sessions Judge at Faridkot, since he was availing summer vacations. He has also pointed out that the learned Incharge Sessions Judge, Faridkot passed an order that the accused stated his name to be Sunil Kumar son of Kasturi Lal, and that all the documents on file showed that they had been signed by him as such. The name of the petitioner as seen in the F.I.R. is Sandeep Kumar. He, therefore, felt that there was an ambiguity regarding the real name of the accused and, therefore,, challan cannot be accepted. He returned the challan to the police for resubmitting the same after making necessary correction regarding the name of the accused and directed that the accused be produced on 28.6.1999.

The learned Additional Sessions Judge, Moga has pointed out that the investigation had been completed within the statutory period, that the challan was presented in time against the accused who is Sandeep Kumar son of Kasturi Lal who had signed all the documents as Sunil Kumar, that the challan had been presented against the accused within 90 days and, therefore, the mere fact that petitioner had signed as Sunil Kumar was of no consequence especially when in the report dated 30.6.1999, the accused has been shown as Sunil Kumar alias Sandeep Kumar alias Kali son of Kasturi Lal. The learned Additional Sessions Judge also pointed out that by simply signing the documents as Sunil Kumar, the petitioner cannot get any benefit and he is also not entitled to be released on bail invoking the provisions contained in Section 167(2) Cr.P.C. He, therefore, dismissed the bail application filed by the petitioner.

That is why the petitioner has approached this Court with this petition under Section 439 Cr.P.C. for fail.

I have heard the counsel for both the sides and perused the records on file.

In the F.I.R. it has been stated that the accused disclosed his name as Sandeep Kumar son of Kasturi Lal, resident of Basti Gobindgarh, Moga, Tange Wali Gali. Learned counsel for the petitioner contends that the name of the petitioner is only Sunil Kumar and he has also signed in all the documents as such. He also contends that since the petitioner was arrested on 2.4.1999, the 90 days period expired on 30.6.1999, whereas the chargesheet was produced only on 5.7.1999, and the bail application had been filed by the petitioner even on 3.7.1999. Pointing out these factors, the learned counsel for the petitioner contends that the chargesheet not having been presented within 90 days, the petitioner is entitled to the benefit of the provisions of Section 167(2) Cr.P.C. and, therefore, he should be released on bail.

But, as pointed out already, the chargesheet had been presented on 25.6.1999. Since the petitioner had signed in all the documents as Sunil Kumar and the F.I.R. stated his name as Sandeep Kumar, the learned Additional Sessions Judge who was incharge, stated that the chargesheet cannot be accepted, and returned it with a direction to resubmit it after making necessary correction and to produce the accused on 28.6.1999. The Investigating Agency had also represented the chargesheet after amending name of the petitioner as Sunil Kumar alias Sandeep Kumar alias Kali son of Kasturi Lal. The question is whether in these circumstances, the petitioner can contend that the chargesheet has not been presented in time and, therefore, he should be released on bail by invoking the provisions of Section 167(2) Cr.P.C. The learned counsel for the State contends that this is a case where even the petitioner has given his father''s name and address as mentioned in the FIR, but has only signed the papers as Sunil Kumar, whereas the F.I.R. showed his name to be Sandeep Kumar. The learned counsel for the State contends that the petitioner cannot take advantage of this fact when there is no doubt with regard to his identity. He further contends that the chargesheet had been presented even on 25.6.1999, i.e before the expiry of 90 days, but was returned since there was variation regarding the name of the accused, and now the chargesheet has been only resubmitted describing the petitioner as Sunil Kumar alias Sandeep Kumar alias Kali and, therefore, the petitioner cannot claim the benefit of the provisions of Section 167(2) Cr.P.C.

It is seen that the chargesheet had been presented on 25.6.1999 itself and was returned for making correction and resubmission. Therefore, it cannot be contended that the chargesheet was presented only on 5.7.1999 after correction and, therefore, it should be deemed to have been presented after 90 days only. Such a contention cannot be accepted in the circumstances of the case where there is no dispute with regard to the identity of the accused and then the chargesheet had been presented even on 25.6.1999, i.e before the expiry of 90 days. Simply because the chargesheet was returned and resubmitted on a later date, it cannot mean that the chargesheet was presented only on the later date entitling the petitioner to invoke the aid of the provisions of Section 167(2) Cr.P.C.

In these circumstances, the petition has to fail and is accordingly dismissed.