' This application for bail on the ground of statutory delay arises from F.I.R. No,44, dated 11-2-1994 on the basis whereof a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was registered at Police Station Chamkani against the petitioner Dawa Jan and one Noor Muhammad.
2. During the first round bail sought on merits was declined for the reason that the petitioner was reasonably connected with the offence for which he had been booked as he was not only caught red-handed while transporting heroin weighing 3 kilograms, opium weighing 11.5 kilograms and Charas weighing 43 kilograms in his Wagon No,PRJ-9171 but was also fully implicated in the crime by his co-accused Noor Muhammad in his confessional statement.
3. It was contended by the learned counsel for the petitioner that the petitioner was well within his right to seek bail on the strength of the third proviso to 'subsection (1) of section 497, Cr.P.C.
Because he was behind the bars for a continuous period exceeding one year but his trial had not yet concluded.
4. Bail plea was opposed by the learned counsel appearing for the State on the ground that the prosecution was not at fault as the delay complained of had occurred on account of successive bail applications moved by the petitioner.
5. For appreciating the point in controversy it will be expedient to reproduce third proviso to subsection (1) of section 497, Cr.P.C. It is worded thus:-- "Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force direct that any person shall be released on bail---
(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not be concluded.
6. The contention raised by the learned counsel for the petitioner is misconceived and the application in hand is premature because after deducting the period consumed by the bail applications moved by the petitioner during the two rounds the statutory period of one year will expire after three months. The abovementioned proviso was deleted at some stage but. Was re- inserted by the Code of Criminal Procedure (Amendment) Act, 1994 with slight modifications. In view of the expression in exercise of any right or privilege under any law for the time being in force used therein the period spent in the exercise of the statutory right for bail is to be counted against the accused and deducted from the prescribed period of one and two years. It is scarcely necessary to mention that this expression has given a new dimension to the third proviso and changed the principle enunciated by certain off-quoted authorities that. It is the statutory right of an accused to seek bail and if he avails that right the time spent in that context cannot be counted against him while determining the question of delay in trial.
' In view of the above, this application does not merit 'acceptance and is accordingly dismissed.