imam and anr. Vs. Central Bureau of Investigation - Court Judgment

Excerpt:
code of criminal procedure, 1973-section 167(2)--petitioners charged under sections 20 and 29 of the narcotic drugs and psychotropic substance act, 1985--arrested on 31.8.91--no challenge/charge sheet filed--period of 90 days from date of arrest expired--petitioners not seeking bail on merit nor asking court to exercise its power to grant bail--asking their entitlement to be released on bail because of default on the part of prosecution--petitioners released on personal bond-; the right to bail under section 167(2) proviso (a) is absolute. there is no discretion or power left with the court not to release the petitioner or to direct them to be detained for any further period, particularly when the prosecution has not presented the charge sheet within 90 or 60 days as the case may be. thereforee, on account of legislative mandate given in section 167(2) proviso (a), the question of considering the conditions or limitations mentioned in section 37 of the ndps act, to my mind, does not arise. the provision of section 167(2) of the cr. p.c. will govern all proceedings. there is, infact, no justification for taking a view that the provision of section 167 (2) cr. p.c. will not apply or exclude the arrest and detention of a person under the provisions of ndps act.;narcotic drugs and psychotropic substance act, 1985 - section 37--court not exercising its power or discretion of granting bail on merits--limitation imposed by the section does not arise-;this court is not exercising its power or discretion of granting the bail on merits, hence the question of considering the limitation imposed under section 37 of the act does not arise. - - in fact section 37 starts with a non assonate clause stating there in that notwithstanding anything contained in the code of criminal procedure, 1973, no person, accused of an of fence prescribed therein shall be released on bail unless the condition contained therein were satisfied. the very reading of section 37 of the act makes it clear that no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. 1 lac with one surety of the like amount each to the satisfaction of the trial court.usha mehra, j.(1) imam and megh raj have been charged under section 20 and 29 of the narcotic drugs and psychotropic substance act (hereinafter called the ndps act), 1985. they were arrested 'in 31.8.91. allegation of the prosecution is that these two persons were sitting on the railway platform of old delhi railway station. they were sitting on two parcels booked through railway and one parcel was lying abandoned. these two petitioners were surrounded by the police and were confronted to show the contents of these three parcels. on being confronted the petitioners admitted that these parcels contained 'charas'. on weighing it was found that three parcels contained 94.50-kg. of 'charas' and since then the petitioners are in jail. (2) petitioners have come up before this court challenging their detention on the ground that no challenge/charge sheet has been filed by the prosecution till date. the period of 90 days from the date of arrest has already expired, thereforee, under section 167 of the code of criminal procedure, the petitioners are entitled to be released on bail. proviso to sub section (2) of section 167 provides as under:- '......andon 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 (his sub-section shall be deemed to be so released under the provisions of chapter xxxiii for the purpose of that chapter:'(3) mr. grover. counsel for the petitioners, contended that the provisions of sub- section (2) of section 167, cr. p.c., are mandatory in nature. the petitioners become automatically entitled to be released on bail when the prosecution chooses not to file the charge sheet within 90 days. he, thereforee, contended that he is not asking bail on merit, for which he has to justify his action or to prove the conditions stipulated under section 37 of the n.d.p.s. act. petitioners are entitled to be released on bail because of the default of the prosecution in not presenting the charge sheet within the period stipulated under the act. he has placed reliance on the observation made by the supreme court in the case of rajnikant jivanlal patel & anr. v. intelligence officer, narcotic control bureau, new delhi, : 1990crilj62 . that was also a case under the ndps act and their lordships observed that: 'an order for release on bail under proviso(a) to s. 167(2) may appropriately be termed as an order-on-default. indeed, it is a release on bail on the default of the prosecution in filing charge sheet within the prescribed period. the right to bail under s. 167(2) proviso (a) thereto is absolute. it is a legislative command and not court's discretion. if the investigating agency fails to file charge sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. but at that stage merits of the case are not to be examined. not at all. in fact the magistrate has no power to remand a person beyond the stipulated period of 90/60 days. he must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.'(4) mr. grover, thereforee, contended that he is not asking this court to exercise the discretion for the grant of bail. the provision of section 37 of the ndps act would be attracted if he had come up to ask for the bail on merit and the court had to use the discretion. in that eventuality the conditions stipulated under section 37 of the act would be attracted. but in the case in hand because of default of prosecution he is entitled to be released even if the quantity alleged it have been recovered is excessive. that cannot be a ground for depriving the petitioner the right which has already accrued in his favor because of the default of the prosecution. (5) on the other hand mr. s.lal, appearing for the respondent contended that even when the provisions of sub-section (2) of section 167, cr. p.c. are to be involved this court has to consider the conditions stipulated under section 37 of the act. the release would not be automatic. that the ndps act was amended to make stringent provision for the control and regulation of operations relating to ndps. in fact section 37 starts with a non assonate clause stating there in that notwithstanding anything contained in the code of criminal procedure, 1973, no person, accused of an of fence prescribed therein shall be released on bail unless the condition contained therein were satisfied. the ndps act is a special enactment and will override the general provision contained in cr. p.c. this act was enacted with a size to make stringent provision. we before, the delying object in negative terms limiting the scope of the applicability of the provision of code of criminal procedure regarding bail. thereforee, even if the petitioners are asking to be released on bail because of the default of the prosecution, still the limitation under section 37 of the ndps act will apply. (6) in this regard he has placed reliance on the decision of the supreme court in the case of narcotics control bureau v. kishan lal & ors. reported in : 1991crilj654 . (7) so far as the proposition of law in kishan lal's case (supra) is concerned there cannot be any quarrel with the same. the very reading of section 37 of the act makes it clear that no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. secondly the power to grant bail under any of the provision of the cr. p.c. should necessarily be subject to the condition mentioned under section 37 of the ndps act. meaning thereby that when the court exercises its power of granting the bail, at that stage limitation prescribed under section 37 have to be looked into. (8) but in the facts and circumstances of this case, this court is not exercising its power or discretion of granting the bail on merits, hence the question of considering the limitation imposed under section 37 of the act does not arise. in this case the order of release on bail is on default of the prosecution as was in the case before supreme court referred to above i.e. rajnikant jivan lal patel. the right to bail under section 167 proviso (a) is absolute. there is no discretion or power left with the court not to release the petitioner or to direct them to be detained for any further period, particularly when the prosecution has not presented the charge sheet within 90 or 60 days as the case may be. thereforee, on account of legislative mandate given in section 167 proviso (a), the question of considering the conditions or limitations mentioned in section 37 of the ndps act, to my mind, does not arise. the provision of section 167 of the cr. p.c. will govern all proceedings. there is, infact, no justification for taking a view that the provision of section 167 cr. p.c. will not apply or exclude the arrest and detention of a person under the provisions of ndps act. even at the risk of repetition, i will repeat that this court is not exercising any power of granting the bail on merit, thereforee, the question of invoking the provision of section 37 of the ndps act at this stage does not arise. (9) the supreme court in the case of kishan lal (supra) was dealing with the power of the high court under section 439 or under section 482 of the cr. p.c. and came to the conclusion that those are subject to the limitation contained in the amended section 37 of the ndps act. the supreme court was not dealing with a case where the challan is not presented within 90 or 60 days as the case may be. of course, if the petitioner had asked for the bail on merit, the observation of supreme court in the case of kishan lal (supra) would have applied on all force. as pointed out above the petitioners are not seeking bail on merit, nor asking this court to exercise its power to grant the bail. they are asking their entitlement to be released on bail because of the default on the part of the prosecution. (10) for the above reasons i order that the petitioners be released on their furnishing personal bond in the sum of rs. 1 lac with one surety of the like amount each to the satisfaction of the trial court.