SANJEEVI Vs. STATE

JUDGEMENT

(1.) THIS petition is for enlarging the Petitioner/accused on bail.

(2.) THE Petitioner is alleged to have committed offence, under Section 21 and 22 of Narcotic Drugs and Psychotropic Substances Act 1985. Learned Public Prosecutor opposes the bail, on the grounds that 120 grams of brown sugar was recovered from the Petitioner, and the Petitioner had been detained thrice, under Act 14 of 1982, previously. Learned Counsel for the Petitioner submits that as per S. 167(2) Code of Criminal Procedure if the charge sheet is not filed within 90 days, bail can be granted. In support of the said contention, he relied upon the ratio held in Berlin Joseph @ Rani v. State1 wherein the Kerala High Court has considered the issue whether Section 37 of the Narcotic Drugs and Psychotropic Substances Act overrides the command contained in the proviso to S. 167(2) of the Code of Criminal Procedure that on expiry of 90 days or 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to furnish bail. The Kerala High Court further held that the third limb contains the legislative command that on the expiry of 60/90 days (as the case may be) an accused, shall be released on bail if he is prepared to and does furnish bail. If the conditions in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, have to be complied with before releasing an accused on bail even after the expiry of 60/90 days, the legislative directive contained in Section 167 loses its commanding force, either Section 37 of the Narcotic Drugs and Psychotropic Substances Act has to yield to the proviso in Section 167(2) of the Code or Section 37 must override the other, and has finally held that the directive contained in Section 167(2) proviso, is intended to be issued at the appropriate stage even if offences under N.D.P.S. Act are involved and if Section 37 of the N.D.P.S. Act is allowed to control or restrict the application to proviso to Section 167(2) of the Code, the latter provision would become ineffective and dead letter. .

(3.) I am in respectful agreement with the view expressed by Pratap Singh, J., and with great respect, I am unable to accept the ratio held by the Kerala High Court in Berlin Joseph @ Ram v. State, 1992 1 C.C.R. 1047