High Court of Punjab and HaryanaCRR/1907/2022disposed of

Rajpal @ Billu v. State Of Haryana

2023-05-16Mr. Justice Jasjit Singh Bedi27 pages

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of decision : 16.05.2023 ... Petitioner

Versus

...Respondent

CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI

**** JASJIT SINGH BEDI, J.

The present revision petition has been preferred against the order dated 02.08.2022 passed by the Additional Sessions Judge, Sonepat whereby the application dated 02.08.2022 filed by the Police officials of the Police Station Ganaur through the Public Prosecutor seeking time for furnishing the final report in case FIR No.92 dated 13.02.2022 under Sections 20, 25 of NDPS Act at Police Station Ganaur, Sonepat has been allowed.

The brief facts of the case are that while the police party was on patrolling duty, secret information was received that Mani Ram son of Rajender, Rajpal @ Billu (petitioner) son of Sube Singh and Vishal son of Hoshiar Singh were moving around in the village carrying a heavy quantity of charas with them in a black coloured Tata Harrier car and if

-2barricading was done on the road from Panchi Jattan to Rajpur, the three accused could be apprehended along with the vehicle and narcotics. Based on the information, a report was prepared and sent to the Police Station Ganaur in this regard. Meanwhile, the police party started checking vehicles and after some time the car in question was seen coming from the side of Panchi Jattan. It was stopped. Two boys alighted from the vehicle. One young boy was sitting on the driver seat and one boy ran away from the spot. The arrested boys disclosed their names as Mani Ram son of Rajender and the driver as Rajpal @ Billu (petitioner) son of Sube Singh. The boy who ran away was Vishal. Thereafter, the recovery of 1 kg 800gms of charas came to be effected from the dash board of the vehicle. The copy of the FIR is attached as Annexure P-1 to the petition.

As the petitioner came to be arrested on 13.02.2022, the period of 180 days to present the report under Section 173(2) Cr.P.C. was to be completed on 11.08.2022. Therefore, an application was moved by the Investigating Officer seeking extension of time for presentation of a report under Section 173 Cr.P.C. The copy of the said application dated 02.08.2022 is attached as Annexure P-6 to the petition. The said application was forwarded by the Public Prosecutor and vide the impugned order, the extension sought by the Investigating Agency for presentation of challan was allowed. The copy of the impugned order extending the time period for completion of investigation

-3by 3 months dated 02.08.2022 is the order impugned in the present petition.

Thereafter, the petitioner filed an application for default bail under Section 167(2) Cr.P.C. on 30.08.2022. The same came to be dismissed vide order dated 31.08.2022. The copies of the application under Section 167(2) Cr.P.C. and the rejection order are attached as Annexures P-3 and P-4 to the petition. A separate revision petition has been filed challenging Annexure P-4.

The learned counsel for the petitioner contends that the prosecution had not moved any application seeking extensionof time in accordance with law. Therefore, the petitioner's right to seek default bail under Section 167(2) Cr.P.C. had accrued. A perusal of the application dated 02.08.2022 would reveal that it was moved by the Police officials of the Police Station Ganaur though it has been forwarded through the Public Prosecutor. The Trial Court had, without applying its judicious mind extended the period for completion of investigation by 90 days which was in violation of the mandatory procedure as laid down in Section 36A(4) of the NDPS Act, 1985. As the extension has been allowed illegally, the bail application moved by the petitioner under Section 167(2) Cr.P.C. was also dismissed vide order dated 31.08.2022 which order is impugned in a separate petition. Reliance is placed by the learned counsel for the petitioner on the judgments in Sanjay Kumar Kedia @ Sanjay Kedia Versus Intelligence Officer, Narcotic Control Bureau & Another, 2010(1) RCR (Criminal) 942, Joginder Singh

-4Versus State of Haryana, CRR-1314-2021, decided on 11.02.2022, Rohtash @ Raju Versus State of Haryana, CRR-933-2022, decided on 01.06.2022, Dhruv Kumar @ Alok & others Versus State of Haryana, CRR-363-2023, decided on 13.03.2023 and Hitendra Vishnu Thakur Versus State of Maharashtra, 1994(3) R.C.R (Criminal) 156. 6.

A reply dated 11.02.2023 by way of an affidavit of AtmaRam,HPS Assistant Commissioner of Police, Gannaur, Sonipathas been filed on behalf of the State by the learned counsel for the State. He contends that since commercial quantity of contraband had been recovered from the petitioner, he was not entitled to the grant of bail. The application for extension had been moved in accordance with law and therefore, the extension of 90 days for completion of investigation had rightly been granted consequent to which his prayer for grant of default bail under Sections 167(2) Cr.P.C. had been dismissed.Even otherwise, the FSL report had been obtained and the challan had already been submitted in Court on 05.11.2022.

I have heard the learned counsel for the parties. 8.

Before proceeding further, it would be apposite to refer to the relevant provisions of law. The same are enumerated hereinbelow:- Section 36A (4) of the NDPS Act, reads as under:-

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Section 167(2) of the Cr.P.C., reads as under:-

167. Procedure when investigation cannot be completed in twenty four hours.- (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police,

-8beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend in any custody under further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;] (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police."

The relevant judgments of the Hon'ble Supreme Court and this Court are as under:- " #$ % &

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, This Court in Joginder Singh, (supra) held as under:- "A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is an independent statutory authority. The Public Prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the

-16court for investigation. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner o that there has been unnecessary, deliberate or avoidable delay in completing the investigation. Thus, for seeking extension of time, the Public Prosecutor after an independent application of mind to the request of the investigating agency, is required to make a report to the court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation.

The Public Prosecutor may attach the request of the investigating officer alongwith his request on application and report, but his report must disclose on the face of it, that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation. The report of the Public Prosecutor, therefore, is not merely a formality but a very vital report because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements of Section 36A(4) of the NDPS Act. The contents of the report to be submitted by the Public Prosecutor, after proper application of his mind, are designed to assist the court to independently decide whether or not extension should be granted in a given case.

Keeping in view the consequences of the grant of extension i.e.

-17Public Prosecutor, to grant extension of time to complete the investigation.

In the case in hand, the application for extension signed by the Investigating Officer cannot be construed as a report of the Public Prosecutor as envisaged in Proviso to sub section (4) of Section 36A of the NDPS Act for the reason that Public Prosecutor had only appended his signatures at the bottom of the page, that too, without even making an endorsement that he had perused the grounds and that, he was satisfied about the progress of investigation and reasons set out for extension of time to complete the investigation. Further, the report did not disclose the progress of investigation. It is a settle proposition of law that report is not a mere formality but requires due application of mind as to the ground for delay in filing challan and the reasons for further detention of accused.

In the considered view of this Court, the application/report filed by the prosecution did not meet the aforesaid requirements envisaged in Proviso to Section 36A(4) of the NDPS Act. It can safely be held that the application for seeking extension of time was nothing but a transmission of request of an Investigating Officer. The report did not reflect the steps taken for obtaining FSL report during the period of first 180 days."

[Emphasis supplied] In Rohtash @ Raju(supra) held as under:- J

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A perusal of the law quoted hereinabove would show that mere filing of an application for extension does not ipso facto empowerthe Court to extend the stipulated period for filing the report under Section 173(2) Cr.P.C. A perusal of the application does not show any application of mind on the part of the Public Prosecutor as to why he feels that the period to present the report under Section 173 Cr.P.C. ought to be extended. In fact, he has acted like a post office or a forwarding agency. A Public Prosecutor is an important officer of the State Government and independent statutory authority.

He is expected to independently applies his mind to the request of the Investigating Agency before submitting a report to the Court as to why extension of time for completion of investigation is sought and that he was satisfied as to the progress of the investigation. He is not merely a post office or a forwarding agency. Quite to the contrary, a Public Prosecutor may or may not agree with the reasons assigned by the Investigating Officer. He may also come to the conclusion that there has been unnecessary, deliberate or avoidable delay in the completion of the investigation.

-20of mind to the request of the Investigating Agency is required to make a report to the Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the Investigating Agency to complete investigation. In fact, the report of the Public Prosecutor is not an empty formality but a vital report because the consequences of its acceptances affects the liberty of an accused and it must, therefore, strictly comply with the requirements of Section 36A (4) of the NDPS Act. In the instant case, a perusal of Annexure P-2 i.e. the application seeking extension of the period for presenting challan would show that the Public Prosecutor simply forwarded the same without any independent application of mind.

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Keeping in view the aforementioned discussion, the present revision petition is allowed and the impugned order dated 10.06.2022 passed by the Additional Sessions Judge, Fatehabad, whereby the period for completion of investigation has been extended by 90 days stands quashed. '%

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A perusal of the legal position as enumerated hereinabove would show that mere filing of an application for extension does not ipso facto empowerthe Court to extend the stipulated period for filing the report under Section 173(2) Cr.P.C. A perusal of the application does not show any application of mind on the part of the Public Prosecutor as to why he feels that the period to present the report under Section 173 Cr.P.C. ought to be extended. In fact, he has acted like a post office or a

-26forwarding agency. A Public Prosecutor is an important officer of the State Government and independent statutory authority. He is expected to independently applies his mind to the request of the Investigating Agency before submitting a report to the Court as to why extension of time for completion of investigation is sought and that he was satisfied as to the progress of the investigation. He is not merely a post office or a forwarding agency. Quite to the contrary, a Public Prosecutor may or may not agree with the reasons assigned by the Investigating Officer. He may also come to the conclusion that there has been unnecessary, deliberate or avoidable delay in the completion of the investigation.

Therefore, for seeking extension of time, the Public Prosecutor, after an independent application of mind to the request of the Investigating Agency is required to make a report to the Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the Investigating Agency to complete investigation. In fact, the report of the Public Prosecutor is not an empty formality but a vital report because the consequences of its acceptances affects the liberty of an accused and it must, therefore, strictly comply with the requirements of Section 36A (4) of the NDPS Act. In the instant case, a perusal of Annexure P-6 i.e.

the application seeking extension of the period for presenting challan would show that the Public Prosecutor simply forwarded the same without any independent application of mind.

12.

Keeping in view the aforementioned discussion, the present revision petition is allowed and the impugned order dated 02.08.2022

-27passed by the Additional Sessions Judge, Sonepat, whereby the period for completion of investigation has been extended by 90 days stands quashed.

JASJIT SINGH BEDI !"! # Whether speaking/reasoned:- Yes/No Whether reportable:- Yes/No