ABDUL SATTAR Vs. STATE OF DELHI

JUDGEMENT

(1.) The only ground on which the petitioner claims bail for the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the NDPS Act) is the non-tiling of a challan against him within 90 days of his arrest.

(2.) According to the case of the prosecution the petitioner was arrested on 6th July; 1991 when he was found in possession of 1 kg. of charas. Challan against the petitioner was filed on 11th October, 1991.

(3.) I have heard Shri Gurvinder Singh learned counsel for the petitioner and Shri B.K. Sharma learned counsel for the respondent. Submission of learned counsel for the petitioner has been that a person against whom challan has not been filed within the period of 60 days or 90 days he vested right in terms of Sec. 167(2) of the Code of Criminal Procedure and, thus, Metropolitan Magistrate has no option but to pass an order of bail. He has, thus, submitted that it is an order in default regardless of the seriousness of the allegations against the petitioner. He has also submitted that by virtue of Section 36A of the NDPS Act, provisions of Section 167(2), Cr. P.C. have been made applicable to the Special Judge who has dealt with the remand of accused after 7 days if it is by an Executive Magistrate and 15 days if it is by a Judicial Magistrate. He has placed reliance upon a number of judgments which I would refer to in the latter part of the judgment Learned counsel for the respondent has, on the other hand, submitted that Sec. 37 of the NDPS Act has provided the grounds on which bail can be allowed for the offence under the NDPS Act and that the provisions of Section 36A would not be available to the petitioner in view of the fact that Special Courts have not been created in Delhi and the procedure would be under the Code of Criminal Procedure read with Sections 36D and 37 of the NDPS Act. He has, thus, submitted that there was no applicability for filing of the challan within 90 days and in these circumstances the petitioner cannot claim an order of bail in default. A prayer has, therefore, been made that the application may be rejected.