RAM DAYAL Vs. CENTRAL NARCOTIC BUREAU

JUDGEMENT

(1.) This Reference is made by one of us (S. K. Dubey, J.) while hearing third bail application of the accused/applicant, arrested in connection with an offence under S. 8/18, The Narcotic Drugs and Psychotropic Substances Act, 1985, for short, the 'Act', or NDPS Act. After hearing counsel, we framed following two questions which arise for our consideration in the facts and circumstances of the case : 1. If for offence under S. 18, NDPS Act, charge-sheet is filed 90 days after the arrest of the accused, whether the latter will, as of right, be entitled to get bail from High Court ? 2. Under what circumstances, the High Court or the "Special Court" can grant bail under S. 37, NDPS Act, to a person accused of an offence under S. 18 of the said Act if plea is raised by the accused in terms of S. 50 of the said Act ?

(2.) On 8-8-1991, the accused was apprehended while travelling in a bus with an attache case, on Agra-Bombay Road, near Shivpuri. From his possession, 5,100 gms. of opium, found kept in the attache case, was seized by the officers of the Narcotics Department. On chemical analysis at Neemuch Laboratory, the identity of the seized article has been established as opium. He has made repeated attempts in the course of last one year for release on bail.

(3.) By order passed or 23-11-1991, in Misc. Cr. Case No. 1823 of 1991, his first bail application was rejected by S. K. Dubey, J. and that decision is reported as Ram Dayal Koli v. State, 1991 (2) MPJR 328. It was unsuccessfully contended house him that for non-compliance of S. 50, NDPS Act, the accused was entitled to bail and reliance was placed on this court's Indore Bench's decision in Hari Appa v. State of 1991 JLJ 193 and 415. In the decision rendered, S. K. Dubey, J. referred to another decision of this Court, of the same Bench, in Bhavarsingh v. State of M. P., 1990 JLJ 193 and Apex Court's decision in Narcotics Control Bureau v. Kishan Lal, AIR 1991 SC 558. However, when the instant application was pressed (repeating the prayer for bail for the third time) reliance was placed on a D. B. decision of this Court rendered at the Main Seat in the case of Kalika Prasad v. State of M. P. (1992 (I) MPWN 5 : 1992 (1) Crimes 73) wherein it has been held that in a case in a which challan is not filed within sixty days of arrest, the accused becomes entitled of bail. That decision's correctness is doubted. Obviously, therefore, accused applicant's entitlement to bail is to be considered on two grounds pertaining to the effect of non-compliance of S. 50, NDPS Act and his right, if any, contemplated under S. 167(2), Cr. P.C.