1. Petitioner has been arraigned as accused in the case registered by the Superintendent of Customs, Air Intelligence Unit, Bangalore International Airport (B.I.A.), Bangalore in O.R. No.7/2012 for several offences punishable under N.D. P.S. Act.

2. According to the case of the prosecution, at about 23.30 hours on 17.07.2012, the Immigration Officer at B.I.A. handed over this petitioner who was bound for Kuala Lumpur through Malaysian Airlines Flight No. MH193 scheduled to leave at 00.45 hours on 18.07.2012, to the Custom Officer of the Air Intelligence Unit at BIA suspecting that he may be carrying some contraband articles in his baggage. Thereafter, the petitioner was brought along with his baggage to the office of the Air Intelligence Unit situated in B.I.A. and his personal search was conducted in the presence of the Gazetted Officer. The baggage was verified and the said bag found containing a bottom portion wherein a Rexin Pouch was found. Rexin Pouch was cut opened and it was found containing white crystalline powder concealed in 3 Plastic Covers Which were wrapped in carbon paper and black plastic paper with cello tape. The foot mats found in the baggage, on verification found containing white crystalline powder concealed. Thereafter, the said crystalline powder was tested in the “GE ITMEISER” Testing Machine and it revealed that the Crystalline Powder was Ketamine Hydrocholoride. The total quantity of the substance was found weighing 4.500 Kgs. Therefore, the contraband substance was seized, after drawing samples under a mahazar. Voluntary statement of this petitioner recorded, revealed that the petitioner was smuggling the aforesaid contraband substance out of the country without declaring the same to customs authorities. Therefore, the petitioner was arrested and produced before the jurisdictional Magistrate, Devanahalli, who remanded him to judicial custody on the same day i.e., on 18.07.2012.

3. On the expiry of sixty days from the date of his first remand, the petitioner filed application under Section 167(2) of Cr.P.C. on 18.09.2012 seeking an order of bail interalia on the ground that since the final report has not been filed within 60 days from the date of first remand, he has acquired an indefeasible right to be enlarged on bail in terms of the proviso to Section 167(2) of Cr.P.C. This contention was urged on the premise that, the investigation Officer was required to file final report within 60 days since the offence alleged against this petitioner was not punishable with death or imprisonment for life or imprisonment for a term not less than 10 years, as per the proviso to Section 167(2) of Cr.P.C. It was also contended that, for the purpose of finding out as to whether the alleged contraband substance seized falls within the commercial quantity, even at the stage of consideration of the prayer for bail, the Investigation Officer ought to have produce F.S.L. report as to the pure drug content to ascertain the quantity of the actual contraband article found in the quantity of the substance seized since the period of punishment prescribed under the N.D.P.S. Act is based on the quantity of the contraband substance. It was further urged that, if only the contraband substance seized falls within the category of commercial quantity, the provisions of Section 36- A(4) of the N.D.P.S Act can be applied, in so far as it related to the extension of time up to 180 days for the purpose of remanding the accused to judicial pending investigation.

4. The application was opposed by the prosecution mainly on the ground that, in the light of the amendment brought into force as per the notification dated 18.11.2009 to the Table specifying the small quantity and commercial quantity under the Act, for the purpose of finding out as to whether or not seized contraband article falls within the category of commercial quantity, the whole quantity of the article seized should be taken into consideration and since in the c