SRI RAM Vs. STATE

JUDGEMENT

(1.) HEARD learned Counsel for the petitioner as well as the learned Public Prosecutor for the State. Learned Counsel for the petitioner submits that accused is in custody for 90 days since his arrest and, investigation has not yet been completed and no challan has been filed, therefore, he is entitled to be released on bail under the provisions of Section 167, Cr.P.C.

(2.) LEARNED Public Prosecutor opposed the prayer. Though there is not dispute that even after the expiry of 90 days since detention of the accused, the investigation has not yet been completed, but he contends that provisions of Section 167, Cr.P.C. are not applicable to investigations under the N.D.P.S. Act. He relies on Jarin Khan v. State of Rajasthan 1992 Cr. LR. (Raj.) 723.

(3.) SECTION 36A of the N.D.P.S. Act specifically makes provisions of Section 167, Cr.P.C. applicable to the cases arising under the N.D.P.S. Act, Section 36A of the N.D.P.S. Act is a non -obstante clause so also Section 37 of the N.D.P.S. Act. Both are to be construed harmoniously. It is to be remembered that right to be released under Section 167(2), Cr.P.C. is as a result of statutory consequence attached to the failure of investigating agency in completing investigation within 90 days and is not dependent on the discretion of the Court while, in the cases where bail application is to be considered on merits of the case, depends upon the discretion of the Court. In that view of the matter, the harmonious construction of two non -obstante clauses, in my opinion, leads to only one result that when condition for invoking provisions of Section 167, Cr.P.C. arises in a particular case, provision of Section 36A will apply and the provisions of Section 37 of the N.D.P.S. Act will not come in the way. Section 37 deals with the consideration of bail application by the Court where it is to be decided on merits of the case on the discretion of the Court.