IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 7th December, 2010
Date of Order: January 04, 2011
+ Crl. MC No.435/2009
%
04.01.2011
Narcotics Control Bureau
...Petitioner
Versus
Ashok Mittal & Anr.
...Respondents
Counsels:
Mr. Satish Aggarwala for petitioner.
Mr. Yogesh Saxena for respondent.
JUSTICE SHIV NARAYAN DHINGRA
1.
Whether reporters of local papers may be allowed to see the judgment?
Yes.
2.
To be referred to the reporter or not?
Yes.
3.
Whether judgment should be reported in Digest?
Yes.
JUDGMENT
1.
This petition under Section 482 Cr.P.C has been preferred by the petitioner
assailing an order dated 28th January 2009 passed by learned Special Judge, NDPS Act
of releasing the accused on bail under Section 167(2) Cr.P.C.
2.
A perusal of order of learned Special Judge would show that the incident had
taken place on 10th March, 2008 and the chargesheet in the case was filed on 9th
September 2008. The accused filed an application for bail on 9th September 2008 under
Section 167(2) Cr.P.C and the learned Special Judge issued notice of the application to
the prosecution for 17th September 2008. Reply to the application was filed and
ultimately vide order dated 28th January 2009, the learned Sessions Judge under Section
167(2) Cr.P.C directed release of the accused/ respondents from whose car 125 packets
of hashish weighing 32 kg were recovered.
Crl.MC 435/2009
Page 2 Of 5
3.
The issue raised by way of this petition is whether the respondents had an
undefeatable right to be released on bail under Section 167(2) since the chargesheet
was not filed within 180 days of the incident.
4.
Section 167(2) Cr.P.C reads as under:
“(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-
1*[(a) the Magistrate may authorise the detention of the accused person,
otherwise than in the custody of the police, beyond 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 in any custody under this
section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this
behalf by the High Court, shall authorize detention in the custody of the
police.
5.
A perusal of above provision would show that the jurisdiction of the Magistrate to
detain the accused in judicial custody arises only when the accused is produced before
him. One time detention which the Magistrate can authorize is of 15 days and the total
detention varies according to the nature of offence. The Magistrate has power of
detention of 180 days in respect of an offence under NDPS Act. Beyond the prescribed
period of 180 days in case of an offence under NDPS Act the Magistrate has no power to
extend detention unless challan is filed. The power to authorize detention by the
Magistrate extinguishes on 180th day and the law provides that he shall pass an order of
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Page 3 Of 5
his release on bail and on accused furnishing bail bond as per order, he shall be
released on bail. The power of Magistrate to authorize detention again starts when
challan is filed and cognizance of the offence is taken by the Magistrate. Thus, after
expiry of 180 days, the Magistrate has not to wait for bail application but has to pass an
order for bail and ask the accused to furnish bail bonds so that he can be set at liberty.
However, if before the accused furnishes the bail bonds, the investigating agency files
challan, the Magistrate per se has to take cognizance of the offence and take
cognizance of the facts and circumstances under which the offence was allegedly
committed by the accused and the investigating agency can very well press that since
the bail bond of the accused has not been furnished, he be not released on bail under
Section 167(2) Cr.P.C. and the accused be kept in custody and his bail application be
decided on merits. While the accused has a right to be released on bail after 60,90 or
180 days, as the case may be, the State also has a right to detain the accused on filing
of challan and accused is entitled to bail only on merits. This position was clarified by the
Supreme Court in Sanjay Dutt v State 1994(5) SCC 410 whereby the Supreme Court
observed that undefeatable right of the accused to be released on bail arising from the
default in not producing the challan continues till filing of challan but does not survive
thereafter and after filing of challan, grant of bail has to be decided on merits.
6.
The respondent has relied upon Uday Mohan Lal Acharya v State of
Maharashtra,AIR 2001 SC 1910 which is a judgment by three Judges Bench of Supreme
Court and by a majority of 2::1, the Supreme Court observed that Sanjay Dutt’s case
(supra) has to be understood in the manner that Magistrate has to dispose of such
application made by accused forthwith if the accused has been in custody without filing
of charge sheet within the specified period and that accused was prepared to furnish bail
bonds. If after filing of application by the accused, the charge sheet has been filed, still
the right of the accused under Section 167(2) Cr.P.C shall continue. Uday Mohan Lal
Crl.MC 435/2009
Acharya’s case (supra) does not overrule Sanjay Dutt’s case (supra) nor the smallerPage 4 Of 5
Bench of Supreme Court could overrule law laid down by Constitutional Bench. The
judgment given by the Constitutional Bench of Supreme Court (Five Judges) in Sanjay
Dutt’s case (supra) is very clear that this right of being released on bail without merits is
available only after statutory period as given under Section 167(2) Cr.P.C for extending
remand has expired till the charge sheet is filed by prosecution. It is not the right of
accused which is defined in Section 167(2), it is the authority of the Magistrate to extend
remand which is defined in Section 167(2). The authority of Magistrate to extend remand
of such an accused is up to 180 days in NDPS cases, in absence of filing of charge
sheet, but once the charge sheet is filed this authority again gets vested in the
Magistrate and after filing of charge sheet, the Magistrate can decide the bail application
only on the basis of merits i.e. facts and circumstances of the case. Uday Mohan Lal
Acharya’s case (supra) is not in consonance of provisions of Section 167(2) Cr.P.C and
its understanding of Sanjay Dutt’s case (supra) is contrary to provisions of Section
167(2) Cr.P.C.
7.
The criminal justice system cannot be made subservient to the wishes of an
investigating officer who, for some or the other reasons, may choose to delay filing
charge-sheet for 2/3 days to ensure that the accused gets bail even in a most heinous
crime. In the present case, the charge sheet was filed on 9th September 2008 itself i.e.
on the date when bail application was made. Once charge sheet had been filed, the
Magistrate was not supposed to consider the bail application under Section 167(2)
Cr.P.C. Moreover, in this case, Magistrate has counted 180 days from 10th March 2008
i.e. from the date of incident. Section 167(2) envisages powers of Magistrate from the
date of production of accused before the Magistrate and not from the date of incident.
8.
I consider that the trial court did not realize the extent of its powers under Section
