NANDA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application presented by the applicants requesting this Court to enlarge them on bail under Section 167 (2) of the Code of Criminal Procedure. The applicants have been arrested on 31-8-1990 in connection with an offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act ). They submit that till 8-12-1990 charge-sheet has not been filed against them and yet they are undergoing detention. The submission made by the applicants is that they are entitled to be enlarged on bail after expiry of period of 90 days by virtue of the provisions of Section 167 (2), provisio of the Code of Criminal Proceudre which reads thus:

(2.) ON behalf of the State, however, reliance has been placed on a decision of this Court in Shahibala Nair v. Intelligence Officer, Narcotic Control Bureau, Bombay and another. The learned single Judge of this Court took a view that the provisions of Section 167 (2) of the Code of Criminal Procedure with regard to enlargement on bail on expiry the period of 90 days do not apply to a case under N. D. P. S. Act. The learned Addi. Public Prosecutor submits that this being a decision of a single Judge is binding on another single Judge of this Court and in support, he relies upon a decision in Sitaram Deoba Marathe v. llawadya Piraji and others. . There can be no quarrel with the proposition laid down by the Division Bench ruling to which a reference has been made by the learned Addi. Public Prosecutor. However, the single Judge, if he differs with the view taken by another single Judge, has to make a reference to a larger Bench and request the learned Chief Justice to constitute such a Bench. Justice Shri M. S. Deshpande differing with the view taken by Justice Shri Suresh has referred the matter to a larger Bench and the reference is pending. In the circumstances, until the reference is answered, another reference to a Division Bench in my opinion is not called for.

(3.) PENDING, however, the reference, the applicants, in my view, are entitled to contend that they should be released on bail. I am also unable to agree with the view taken by Justice Shri Suresh in his judgment. I find that the provisions of Section 167 (2) of Code of Criminal Procedure are mandatory in nature and govern all proceedings. There is in my view, with respect, no justification for taking a view that this excludes the arrest and detention of a person under the provisions of N. D. P. S. Act. This view finds support in a decision of the Supreme Court, which has been referred to and relied upon on behalf of the applicants, in the case of Rajnikant Jivanlal Patel and another v. Intelligence Officer, Narcotic Control Bureau, New Delhi. Their Lordships had before them a case under N. D. P. S. Act. In that case it has been observed - An order for release on bail under proviso (a) to Section 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 Section 167 (2) proviso (a) thereto is absolute. It is a legislative command and not Courts discretion. If the investigating agency fails to file charge-sheet before the expiry of90 or 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 or 60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The further detention beyond the period of 60 or 90 days, as the case may be, in my view is not justified. The corrolary would be that the applicants would be entitled to the order of bail. Pending therefore answer in the reference, I think the accused should be enlarged on bail.