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No FSL report, pending arrest of co-accused not valid reason to keep accused behind bars: High Court

The district court of Kurukshetra had allowed three-month extension to the public prosecutor for filing the final report and thus dismissing the application for “default bail” of an accused in NDPS case.

Punjab and haryana high court, indian expressThe Punjab and Haryana High Court (HC) set aside two orders of Kurukshetra district court. (File Photo)

Holding that non-receipt of FSL report and pending arrest of co-accused, are invalid reasons for granting extension of custody, the Punjab and Haryana High Court (HC) set aside two orders of Kurukshetra district court.

The district court of Kurukshetra had allowed three-month extension to the public prosecutor for filing the final report and thus dismissing the application for “default bail” of an accused in NDPS case.

Petitioner Gurmej Singh contended through counsels, Kanika Ahuja and Kirti Ahuja that he was arrested on December 21, 2021, and was produced before the court on December 22, and the public prosecutor moved an application on June 15, 2022, under Section 36A(4) of NDPS Act, for extension of time for filing the challan without stating any specific reasons as to why the detention of the petitioner, beyond the stipulated period of 180 days, was necessary.

His counsel argued that the public prosecutor had not applied his independent mind and had forwarded what the investigating officer had stated in his application for seeking extension .

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The counsel submitted that only two reasons were given – FSL report has not been received and co-accused Raju alias Diwan Aacharya was yet to be arrested. He added that the two reasons were not enough to seek further custody of the petitioner.

The Bench of Justice Vikas Bahl, while citing a judgment of the co-ordinate Bench of the HC in Hargobind Singh case (supra), said that, “…the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 and 90 days, keeping in view the gravity of offence and that, in case the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure if he moves an application for such purpose. The said maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the NDPS Act and it was observed that under Section 36-A of the NDPS Act, the period of detention could be extended up to one year upon a report of the Public Prosecutor in case the report stringently indicates (i) the progress of the investigation and (ii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days…”

Citing another case of Joginder Singh case (Supra), the Bench said that as per the perusal of the judgment passed by a co-ordinate bench, “the court must also be satisfied with the justification afforded, from the report of the Public Prosecutor, to grant extension of time to complete the investigation”.

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Justice Bahl held that in the order dated June 18, 2022, which has reproduced herein above, no specific, much less compelling, reason has been spelled out to substantiate as to why the detention of the petitioner beyond the period of 180 days is necessary.

Justice Bahl added that the criminal revision petitions are allowed and the impugned orders dated June 18, 2022 as well as dated June 22, 2022 are set aside and the application filed by the petitioner under Section 167(2) Cr.P.C. for ‘default bail’ is allowed and the petitioner is ordered to be released on “default bail”.

First published on: 28-09-2022 at 08:59:15 am
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