ARUL Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) The petitioners are charged under Section 21 (b) of NDPS Act for having been found in possession of 2 grams and 30 grams respectively of herion powder. They seek bail under proviso (a) (i) to Section 167 (2) of Cr. P.C. on the ground that no charge sheet has yet been filed even though they are in custody for more than 90 days. They also plead that the delay in sending the property to Court entitles them to be released on bail.

(2.) The main argument of learned counsel for the petitioners is that on the failure of the prosecution to lay the charge sheet within 90 days they have to be released on bail under Section 167(2) Cr. PC. They point out that under Section 167(2) no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding ninety days, where the investigation relates to an offence punishable with death, imprisonment for life imprisonment for a term of not less than ten years. And the accused person shall be released on bail if he is prepared to and does furnish bail. They argue that Art. 21 and 22 of the Constitution of India cannot be subjected to presumptions and limitations contained in the Section of NDPS Act. As per their contention, though Section 36(A) of the NDPS Act commences with a non-obstante clause "Notwithstanding anything contained in the Code of Criminal Procedure, 1973" Sub-Section (3) of Section 36(A) provides that nothing contained in that Section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973. So Section 37 of the NDPS Act does not limit the powers of the High Court and the powers of this court are unlimited. Besides if we go into the contours of Section 36(A) of NDPS Act we find that it contains three Sub-Sections. In the first Sub-Section, after providing that offences under NDPS Act shall be tried by special court constituted by the Government, it enables a Magistrate to order detention of the accused forwarded to him under Section 167(2) of the Code. Here the same powers as contained in Section 167(2) of the Code are repeated with the only alteration that the court to which the accused is to be forwarded next is the special Court constituted under the NDPS Act. Clauses (c) of the said Sub-Section is important in this context. It reads thus :-

(3.) In support of their plea, learned counsel has placed reliance of Berlin Jospeh @ Ravi v. State (1992 (1) Crimes 1221) and Md. Abdul v. State of West Bengal (1991 (2) Crimes 741). In the first case of Full Bench of the Kerala High Court has held that conditions in Section 37 of the NDPS Act for granting bail do not have any overriding effect on the provision to Section 167 (2) of the Code of Criminal Procedure. In the next case a Division Bench of the Calcutta High Court has laid down that in cases where clause (c) to Section 36(A)(1) of the NDPS Act is attracted, Section 167 of Cr. PC will apply and in all cases where charge has not been submitted and cognizance of the offence has not been taken by Special Judge the provisions of Section 167 of the Code have to be complied with. Though learned counsel for the petitioners maintained that this court had no occasion so far to consider the question involved in the present petitions learned Additional Public Prosecutor bought to my notice two recent decisions of learned Single Judges. In Seemairaj v. Asst. Collector, Central Excise (1992 Mad LW (Crl) 387) : (1993 Cri LJ 844) (Mad) Pratap Singh, J. has held that the provision to Section 167(2) Cr. PC is not applicable to cases covered by Section 37 of the NDPS Act. In such cases, only if the requirements of Section 37(b) of the Act are satisfied, the accused can be released on bail. The proviso to Sub-Section (2) of Section 167 Cr. PC is not a limitation for the purpose of grant of bail, but only a technical lever enabling the release of an accused person where a charge sheet has not been filed within 90 days, if the offence is punishable with life sentence or sentence of ten years or above, irrespective of the fact whether investigation is still pending or not. If one reads the provisions of Sections 36-A and 37 of the NDPS Act together and particularly Sub-Section (2) thereof, it becomes clear that the proviso to Sub-Section(2) of Section 167 will have no application in such cases where a person had been charged under any of the offences falling within the scope of the NDPS Act. In Sanjeevi v. State (1993 Mad LW. (Crl) 76) Ali Mohammed, J. has followed the said judgment and dessented from the Full Bench decision of the Kerala High Court. He held that the proviso to Section 167(2) Cr. PC is not applicable to cases covered by Section 37 of the NDPS Act. I am in respectful agreement with the view expressed by the two learned Judges that conditions in Section 37 of the NDPS Act have to be complied with before releasing an accused on bail even after the expiry of 90 days.