CHANDRA SONI ALIAS PUSHPA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the parties and perused the record made available to me during the course of arguments of the case.

(2.) Learned counsel for the petitioner submits that the petitioner moved an application under the provisions of Section 167(2) of the Cr.P.C, as challan was not Filed within sixty days from the date of arrest. Under the provisions of Section 167 of the Cr.P.C, procedure is provided when investigation cannot be completed in 24 hours. As per the provisions Section 167(2) Cr.P.C, the Magistrate, to whom an accused person is forwarded, authorizes detention of the accused in such custody as the Magistrate thinks fit, but then the term should not exceed to 15 days at a time. Under the proviso, it has further been provided that the total period of custody in those circumstances cannot go beyond a period of 60 days or 90 days as the case may be. Referring to the aforesaid provision read with provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act of 1985'), specifically Section 36A of the Act of 1985, where the detention of 90 days is to be read as 180 days, learned counsel for the petitioner submits that the present matter was not such where the detention can be authorized for 180 days. It is stated that the contraband "Opium" so recovered was 2.5 kg. in this case and the same cannot be considered to be commercial quantity in view of the definition of the commercial and small quantity provided under the Act of 1985, Relying on the judgment of the Hon'ble Himachal Pradesh High Court in the case of Ratto vs. State of H.P. reported in 2003(3) Crimes 323, it has been emphasized that whatever quantity has been specified as commercial quantity in the Schedule appended to the NDPS Act, the commercial quantity can be such which is bigger, greater and higher than the quantity provided under the Schedule. Referring to the Schedule, it has been state 1 that for "Opium" the quantity mentioned is 2.5 kg, this, as per the definition of the commercial quantity provided under the Act of 1985, the quantity to be recovered should be greater or higher than 2.5 kg. so as to make out a case of commercial quantity. It is stated that in the present matter since the recovery of "Opium" is 2.5 kg., thus, it is not greater than the quantity provided under the Schedule, hence cannot be considered as commercial quantity. According to learned counsel for the petitioner, the challan was required to be filed within the specified time of 60 days provided under Section 167(2) Cr.P.C. read with Section 36A of the NDPS Act, failure of the Investigation Officer to submit the challan within the specified period makes the petitioner entitled for his release forthwith because the challan was not filed even on the day of filing of the application for grant of bail before the court below.

(3.) On the other hand, learned Public Prosecutor has opposed the bail application and submits that the challan could not be filed in view of the fact that other accused was also involved in the matter and in any case the challan could be filed within 180 days as the quantity of 2.5 kg. of "Opium" should be considered as commercial quantity.