JUDGMENT - H.W. DHABE, J.:---These two Criminal Applications can be, conveniently, disposed of by a common judgment. Reference to the parties would, however, be as in Criminal Application No.1614 of 1990 preferred by the original accused.

Briefly, the facts are that on 10th of March, 1989, while the applicant/accused was in the process of boarding the Swiss Air Flight for Zurich from Sahar Airport, Bombay, he was intercepted and his baggage was searched by the Customs Department. From his baggage, the Department recovered 2.500 Kgs brown powder, i.e. Hashish valued at Rs.25,000/-. The applicant/accused was produced before the learned Magistrate, and later on the Assistant Collector of Customs filed a case against him under section 8(c)r/w sections 20,23 and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short 'N.D.P.S. Act') and under section 135 of the Customs Act.

2. The applicant/accused was arrested on 10-3-89. However, the charge-sheet was not filed against him within a period of 90 days, i.e until 9-6-1989. He, therefore , filed an application for bail on 19-7-1990 under section 167(2) of the Code of Criminal Procedure, (For short 'Cr.P.C.'). In the meanwhile, the charge-sheet was filed on 26-6-1989. The learned Spl. Judge i.e. the Additional Sessions Judge, Greater Bombay, rejected the bail application on the ground that the question of applicability of section 167(2) of the Cr.P.C. to the person accused of an offence under the N.D.P.S. Act was preferred to the Division Bench by Deshpande, J., in Criminal Application No.1702 of 1989 with Criminal Application No.2105 of 1989, since he disagreed with the view taken by Suresh,J., in a previous decision holding that section 167(2) of the Cr.P.C. is not applicable to the persons accused of offences under the N.D.P.S. Act. He, therefore, held that it would not be proper for him to grant bail under section 167(2) of the Cr.P.C. Feeling aggrieved, the applicant/accused has preferred the instant Criminal Application No.1614 of 1990 in this Court claiming interim bail under section 167(2) of the Cr.P.C. pending the decision of the Division Bench in the above case referred to it by Deshpande, J.

3. On 23-7-1990, Patil, J., passed an order in Criminal Application No. 1614 of 1990 which is as follows :---

" Heard both sides.

Since charge-sheet was not filed within prescribed time, the petitioner is entitled to bail u/s. 167(2) of the Criminal Procedure Code which can be cancelled after filing of charge-sheet. Now the Additional Public Prosecutor states that charge-sheet is filed on 7th March, 1990. In the circumstances, even if the petitioner is entitled to technical bail, the same is liable to be cancelled as charge-sheet has been filed. Considering the facts of this case, I am of the view that such action is necessary, but before opportunity will have to be given to the petitioner.

Issue notice to petitioner to show cause why such action be not taken."

The case was adjourned to 31st July, 1990. On 31-7-1990 the Assistant Collector of Customs filed Criminal Application No.1712 of 1990 that the bail which is granted to the applicant /accused under section 167(2) of the Cr.P.C. should be cancelled. Both these applications are, therefore, being disposed of by this common judgement.

4. The learned Counsel for the applicant/accused has urged before me that since there is a difference of view between the two learned Judges of this Court and since the Division Bench of this Court is not likely to resolve the said difference of view by its judgement within a reasonable time the applicant/accused should be granted interim bail under section 167(2) of the Cr.P.C. pending decision in the above case by giving him the benefit of the view of the learned Single Judge of this Court. Deshpande, J., who has held that section 167(2) of the Cr.P.C. is applicable to the person accused of an offence under the N.D.P.S. Act. According to him, Deshpande, J., has granted

Click Here to Read the rest of this document