NATHA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioner's counsel contends that a case under Section 15/61 of N.D.P.S. Act, 1985, (hereinafter referred to as the 'Act') is registered against the petitioner on the ground that on 1-7-1994 when his personal search was taken in the presence of D.S.P. Fazilka, he was found in conscious possession of 40 Kgs. and 250 Gms. of poppy husk. He further contends that since then he is in custody. Challan has not yet been filed against the accused petitioner. Thus under the mandatory provisions of Section 167(2), Cr. P.C. he is entitled to be released on bail. He has placed reliance on Ajit Singh v. State of Punjab, 1994 (2) Recent Criminal Reports 279 : 1994 Cri LJ 2342 (P and H).

(2.) The respondent's learned Counsel relying on Narcotic Control Bureau v. Kishan Lal, 1991 (1) Recent Criminal Reports 338 : 1991 Cri LJ 654 (SC) and Ram Dayal v. Central Narcotic Bureau, 1993(2) Cri LJ 1443 (Madh Pra) (FB) (Full Bench decision of Madhya Pradesh High Court), argued that Section 37 of the Act starts with a nonobstante clause which overrides Section 167(2) proviso, Cr. P.C. If the prosecution is opposing the bail and has shown that there is prima facie case against the accused petitioner and that he is likely to commit any other offence while on bail, the bail cannot be granted on the ground simpliciter that challan is not filed within 90 days from the date of arrest of the accused petitioner.

(3.) No doubt in Ajit Singh's case (Supra) Single Bench of this Court has taken a view that if proviso to Section (2) of 167 Cr. P.C. is not complied with, charge-sheet is not presented within 90 days of the arrest of the accused, he is entitled to be released on bail. In that case, provisions of Section 37 of the Act were not at all considered. In Kishan Lal's case (supra) the Appex Court has held that in matters of grant of bail to accused, Section 37 of the Act would apply and not Section 439, Cr. P.C. It is further held therein that in case of inconsistency between Section 439, Cr. P.C. and Section 37 of the Act, Section 37 would prevail. The Full Bench of the Madhya Pradesh High Court has held in Ram Dayal's case (supra) that even if the charge-sheet is filed after 90 days of the arrest of the accused, he is not entitled to get bail from the High Court as of right under Section 167(2 ) Cr. P.C. as Section 37 of the Act, overrides Section 167(2) Cr. P.C.