RAM MILLAN Vs. STATE

JUDGEMENT

(1.) This is a petition for bail under Section 439 read with Section 167(2) of the Code of Criminal Procedure (for short 'the Code').

(2.) In this application the petitioner while seeking the bail is also challenging the legality and validity of order dated 7/9/1998 passed by the learned Additional Sessions Judge rejecting his application for bail sought because of the right accrued under proviso to sub-Section (2) of Section 167 of the Code.

(3.) Briefly, the facts which are not disputed during arguments, are that on the basis of alleged recovery of 300 Gms. of Ganja the petitioner was arrested by the police on 30/7/1998 and was remanded to judicial custody on 31/7/1998 and the remand was extended from time to time. Challan, having not been filed, on 28/9/1998 an application for bail was filed by the petitioner under Section 439 of the Code read with proviso to sub-Section (2) of Section 167 of the Code. The learned Additional Sessions Judge on 28/9/1998 ordered notice be issued to the State for 30/9/1998 but it perhaps was not served because of paucity of time, and on 30/9/1998 fresh notice was issued for 5/9/1998. The application was taken up on 7/9/1998. In the meantime, challan for an offence under Section 20 of the NDPS Act was filed on 3/10/1998. The bail application was rejected by the learned Additional Sessions Judge on 7/10/1998 on the ground that the challan had already been filed and the benefit for bail was not available under the said proviso. Dr. Bipin Shantilal Panchal Vs. State of Gujarat AIR 1996 SC 2897; and Sanjay Dutt Vs. State through CBI , 1994 AIR SCW 3857 had been cited.