JUDGMENT
D.P. Wadhwa, J.
(1) This is a petition under Section 439 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). The petitioner seeks his release on bail for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for Short ‘the Act’).
(2) The petitioner was arrested on 25-7-1987. Four kg. of charas was recovered from his possession. He was produced before the duty magistrate on 26-7-1987 who remanded him to judicial custody up to 7-8-1987. On this date, the petitioner was again remanded to judicial custody till 21-8-1987. On this date, he was not produced before the magistrate concerned. On the following day, however, an application was moved by the investigating officer wherein it was stated that the petitioner was to appear in court on 21-8-1987 but did not turn up. His production warrant was therefore sought to be issued to the Superintendent Jail. The learned magistrate directed production warrant for 8-9-1987, on which date a report under Section 173 of the Code was submitted.
(3) It appears, however, that another case under Section 20 of the Act was pending against the petitioner in the court of th e Additional Sessions Judge. In this case, 500 gm. of charas was recovered from the possess of the petitioner on 6-1-1987. The petitioner in this case was on bail. However, since he was arrested on 25-7-1987 being in possession of 4 kg. of charas, his production warrant was issued by the learned Additional Sessions Judge for 21-8-1987 which was the date fixed in his court. The petitioner did appear there in judicial custody and that matter was adjourned to 2-9-1987.
(4) The petitioner filed an application under Section 439 of the Code before the Additional Sessions Judge for his release on bail in the present case. The principal contention raised therein was that the detention of the petitioner in jail after 21-8-1987 was illegal and that the petitioner was entitled to be released on bail on that ground alone. His contention was negatived by Mr. P.K. Jain, Additional Sessions Judge, Shahdara, by a detailed order dated 31-8-1987. The learned Judge referred to various provisions of the Code as well as to certain decisions to come to the conclusion that the petitioner was not entitled to bail on the ground that his detention was illegal or unauthorised there being no order of & competent magistrate remanding him to judicial custody. The petitioner then filed the present petition. By order dated 24-9-1987 I held that on merits of the case the petitioner was not entitled to bail. Since however, a point was again raised that he was in jail without any valid order of remand for a certain period and that on that account he was entitled to bail, I issued notice to the Public Prosecutor and heard arguments.
(5) It was contended by Mr. M.R. Chawla, learned counsel for the petitioner, that when the petitioner was produced before the court ofAddl. Sessions Judge on 21-8-1987 in the case for recovery of 500 gm. of charas. from him, there were orders of his release on bail existing and the petitioner had furnished the requisite bail. He said petitioner was on bail for all purposes in that case and there could not be any order of remand there. Thus, according to Mr. Chawla. there was no order under Sub-section (2) of Section 167 of the Code authorising the detention of the petitioner in custody after 21-8-1987 and till 7-9-1987.
(6) The question that arises for consideration is if in such circumstances the petitioner is entitled to bail. Powers of police to investigate are contained in Chapter Xii of the Code. Section 167 falls in this Chapter. Under this section whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within a period of 24 hours and there are grounds for believing that the accusation or information is well-founded, the police officer concerned as mentioned in Sub-section (1) is to forward the person to the nearest judicial magistrate. Under Subsection (2) the magistrate can authorise the detention of the accused person in the custody of the police for a period not exceeding 15 days in the whole. However, a magistrate may authorise the detention of an accused person otherwise than in the custody of the police beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing. If the magistrate authorises such custody for a total period exceeding 90 days in respect of an offence punishable with death, imprisonment for life or for a term not less than 10 years, and 60 days where the investigation relates to any other offence, then the accused person is entitled to be released on bail, and when released shall be deemed to be so released under the provisions of Chapter Xxxiii of the Code. A magistrate cannot authorise detention in any custody unless the accused is produced before him. The provisions for remand of an accused person are also contained in Section 309 of the Code but that would apply only in the case of an inquiry or trial under the Code. Chapter Xxxiii of the Code contains provisions as to bail and bonds. Section 437 in this Chapter is relevant in so far as the court of the magistrate is concerned. It provides that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or court of session, he may be released on bail subject to certain conditions. Under Sub-section (5) of Section 437 any court which has released a person on bail may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. Under Sub-section (1) of Section 439, a High Court or court of session may direct that any person accused of an offence and in custody be released on bail. Under Sub-section (2) of this section, a High Court or court of session may direct that any person who has been released on bail under Chapter Xxxiii be arrested and commit him to custody. Examination of the aforesaid provisions of the Code with reference to the facts of the present case would show that report under Section 173 of the Code having been submitted within a period of 45 days, the petitioner would not be entitled to bail. The grant of bail to a person accused of an offence is a statutory right under the Code in given circumstances. Apart from the provision relating to grant of anticipatory bail as contained in Section 438 of the Code, an accused person can be released on bail under Section 439 when he is in custody. The court has also power to cancel the bail and again commit the accused to custody. There is no provision in the Code which entitles an accused to an order for grant of bail during the course of investigation when there is no order authorising the detention of the accused person under Sub-section (2) of Section 167 of the Code, or even when there is no order of remand during the course of inquiry or trial under Section 309 of the Code. If the argument of the petitioner is correct that he has to be compulsorily released on bail when there is no valid order authorising his detention in custody, then his bail can also not be cancelled under Sub-section (5) of Section 437 or under Su-b-section (2) of Section 439 of the Code. This cannot be so. If the detention of the petitioner is not legal because there is no order of the magistrate authorising his detention, he may have other remedies available to him of even getting his detention quashed but that certainly, to my mind, is no ground for his release on bail as contended by Mr Chawla. In State of U. P. v. Lakshmi Brahman and another , the court observed that after expiry of 90 days or 60 days as mentioned in Sub-section (2) of Section 167 of the Code, from the date of arrest of the accused, as the case may be, his further detention did not become ipso facto illegal or void but he would be entitled to an order for being released on bail if he was prepared to and did furnish bail. The High Court in this case had held that there being no proper order of remand under Section 309 of the Code, the accused was entitled to bail. This was not approved by the Supreme Court. The Supreme Court held that the view taken by the High Court introduced a stage of compulsory bail not envisaged by the Code. In Taju Khan v. State of Rajasthan (1983 Cri. L.J. 1518), the accused sought his release on bail on the ground of his illegal detention inasmuch as the order of remand before the expiry of the period for filing charge-sheet under provisos to Sub-section (2) of Section 167 of the Code was passed by the Reader of the court and not by the magistrate. The court held that the accused was not entitled to be released on bail even though at some anterior period his detention was illegal. It was held that in such a case if there was a last valid order of remand, the application for grant of bail was to be considered in the light of the provisions contained in Section 437 of the Code. This judgment was sought to be distinguished on the ground that subsequently before hearing on bail application, the detention was authorised by the magistrate by further order of remand. In a later full bench decision of the Rajasthan High Court in Mahesh Chand etc. v. State of Rajasthan etc. (1985 Cri. L.J. 301), the view taken in Taju Khan’s case (supra) was approved and the court further held that the Code did not contain any provision entitling an accused to be released on bail merely on the ground, and without more, that his detention in prison was illegal. It was held that in order to obtain his release on bail, the accused must show that his case was either covered by provisos to Sub-section (2) of Section 167 of the Code or that he was entitled to be released on bail under the provisions of Chapter Xxxiii of the Code. It was further held that bail was no remedy and had never been conceived or intended in law to be a remedy for illegal detention. I am in respectful agreement with the views expressed therein. Same was the view expressed by & division bench of the Orissa High Court in Durei Behera and etc. v. Suratha Behera and another (1987 Cri. L.J. 1462). In this it was also held that an earlier illegal detention was no ground turn bail.
(7) Mr. Chawla also referred to a decision of the Supreme Court in Khatri v. State of Bihar (1981 Cri. L.J. 470) where the accused persons were not produced before the judicial magistrate subsequent to their first production and they continued to remain in jail without any remand orders being [passed by the judicial magistrate. The court held that this was plainly contrary to law and observed as under :- “IT is difficult to understand how the State continued to detain these accused persons in jail without any remand orders. We hope and trust that the State Government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of the law are permitted to be committed by the administrators of the law. The provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to keep check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police.”
These observations, however, do not support Mr. Chawla in his submission that if the detention of the petitioner is contrary to law he is to be released on bail.
(8) This petition is, therefore, dismissed.
