Accused Gets Indefeasible Right To Bail Due To Default Of Investigating Agency In Not Presenting Report U/s. 173 CrPC Within Stipulated Period: P&H HC

The Punjab and Haryana High Court has ordered an accused in the NDPS case to be released on bail after noting that once it was held that the grant of extension of 90 days in the presentation of the chargesheet itself was bad in the eyes of law, the further detention of the accused would be in violation of Section 167(2) CrPC read with Section 36A (4) of the NDPS Act.

A Single Judge Bench of Justice Jasjit Singh Bedi observed that “A perusal of Section 36A (4) of the NDPS Act and Section 167(2) proviso (a) CrPC along with the judgment in Joginder Singh would show that an accused gets an indefeasible right to the grant of bail on account of the default by the Investigating Agency in not presenting the report under Section 173 Cr.P.C. within the stipulated period”.

Advocate Pardeep Singh Poonia appeared for the Petitioner, whereas, Asst. A.G Neeraj Poswal appeared for the Respondent.

In a brief background, while the police party was on patrolling duty, secret information was received that the Petitioner and other accused persons were moving around in the village carrying a heavy quantity of charas with them in a black coloured car and if barricading was done, the three accused could be apprehended along with the vehicle and narcotics. After checking the vehicle, the recovery of 1.8 kg of charas came to be affected from the dash board of the vehicle. As the Petitioner came to be arrested on February 13, 2022, the period of 180 days to present the report under Section 173(2) Cr.P.C was to be completed on August 11, 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, which was allowed. Thereafter, the Petitioner filed an application for default bail under Section 167(2) Cr.P.C which was dismissed.

After referring to Section 36A (4) of the NDPS Act and Section 167(2) proviso (a) CrPC, the Bench stated that an accused gets an indefeasible right to the grant of bail on account of the default by the Investigating Agency in not presenting the report under Section 173 CrPC within the stipulated period.

In the instant case, “an application for extension was moved by the Investigating Agency seeking additional time for presentation of the report under Section 173 Cr.P.C. in the absence of the report of the FSL. An extension of 90 days was granted vide order dated August 2,2022. However, vide order dated May 16, 2023, the said order had been set aside by this Court”, added the Bench.

Therefore, observing that once it is held that the grant of extension of 90 days in presentation of the challan itself is bad in the eyes of law, the Bench clarified that the further detention of the Petitioners would be in violation of Section 167(2) CrPC read with Section 36A (4) of the NDPS Act.

Hence, the Bench ordered the petitioner to be released on bail to the satisfaction of the Trial Court/Duty Magistrate concerned.

Cause Title: RAJPAL @ BILLU v. STATE OF HARYANA [Neutral Citation No: 2023: PHHC: 073807]

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