IMPORTANT POINT
Even if charge-sheet is filed after-90 days of the arrest of the accused on that (ground itself the person charged u/s.18 of the Narcotic Drugs and Psychotropic Substances Act, is not entitled to get bail from the High Court.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 18 & 37 - Criminal Procedure Code, 1973 - Section167(2) - Prosecution for offence u/s. 18 - Charge sheet filed 90 days after the arrest of the accused - Accused not entitled to get bail from High Court Section 167(2) Proviso, not applicable to a proceeding under NDPS Ad - Courts are required to dispose of the prayer in terms of section 37 only - No power outside that is invokable by a person accused under the Act to get released on bail. (Para 15)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 18,37 and 50
       Prosecution for offence U/S 18 - Effect of noncompliance of section 50 - Circumstances under which the High Court or the Special Court can grant bail.
       Held: Before plea raised in terms, section 50 of the Act by a person arrested in Connection with an offence under section 18 thereof is accepted and the Court reaches the conclussion that its jurisdiction to release the accused is not curbed by the "limitations" contemplated under section 37, it must address, itself to the question of bona fides of the plea and hold an enquiry in that regard. It may reject the plea if its is found to be a mere pretence; so if, it is not a case of a searching the person of the accused an of alleged recovery, in the course of such search, of the contraband substance.
       (ii) Neither, High Court nor the special Court has jurisdiction to accept the plea waiving the "limitations" contemplated under section 37, without investigating its truth and validity. The Court has to reach affirmatively the tentative conclusion that the arrest and the subsequent proceedings are impugnable albit leaving open for decision in the Court of trial, the question of prejudice. We hold accordingly that Mari Appa (spura) is not correctly deicded decided and that is overuled.
       (para 19)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985 - NDPS Rules, 1985. Rule 2(c) - Chemical analysis of unlawfully possessed opium seized in Connection with an offence - Any Laboratory in the Country permissible to do the analysis - Laboratories of Neemuch and Ghazipur are for analysis of samples of lawfully cultivated and produced opium. (Para 20)
       Result: Ordered accordingly.

JUDGMENT

Dr. T.N. Singh, J. - This reference is made by one of us (S.K. Dubey, J.) while hearing third bail application of the accused/applicant, arrested in Connection with an offence under section 8/18. - The Narcotic Drugs and Psychotropic Substances Act, 1985, for short "the Act" or NDPS Act. After hearing Counsel, we framed following two questions which arise for our consideration in the facts and circumstances of the case:

(1) If for offence under section 18, NDPS Act, charge-sheet is filed 90 days after the arrest of the accused, whether the latter will, as of right, be entitled to get bail from High Court.

(2) Under what circumstances, the High Court or the "Special Court" can grant bail under Section 37, NDPS Act, to a person accused of an offence under section 18 of the said Act if plea is raised by the accused in terms of section 50 of the said Act?

2. On 8.8.1991, the accused was apprehended while travelling in a bus with an attache case, Agra-Bombay Road, near Shivpuri. From his possession 5,100 gms. of opium found kept in the attache case, was seized by the officers of the Narcotics Department. On chemical analysis at Neemuch by Laboratory, the identity of the seized articles has been established as opium. He has made repeated attempts in the course of last one year for release on bail.

3. By order passed on 23.11.1991 in Misc. Cr. Case No. 1823 of 1991, his first bail application was rejected by S.K. Dubey, J. and that decision is reported as Ram Dayal Koli v. State1. It was unsuccessfully contended before him that for non-compliance of section 50, NDPS Act, the accused was entitled to bail and reliance was placed on this court's Indore Bench's decision in Hari Appa v. State of M.P.2. In the decision rendered, S.K. Dubey 1. referred to another decision of this Court, of the same Bench in Bhavarsingh v. State of M.P.3, Apex Court's decision in Narcotics Control Bureau v. Kishan Lal4 . However, when the instant application was passed (repeating the prayer for bail for the third time) reliance was placed on a D.B. decision of this court rendered at the main seat in the case of Kalika Prasad v. State of M.P.s, wherein it has

1. 1991 (2) M.P.J.R. 328.

2. 1991 J.L.J. 415; Dissented from.

3. 1990 J.U. 193.

4. A.I.R. 1991 S.C. 558.

5. 1992 (1) Crimes 53; Overruled.

been held that in a case in which challan is not filed within sixty days of arrest, the accused becomes entitled to bail. That decision's correctness is doubted. Obviously, therefore, accused applicant's entitlement to bail is to be considered on two grounds pertaining to the effect of non-compliance of section 50, NDPS Act and his right, if any, contemplated under section 167 (2) Cr. P.C.

4. Arguments in this matter were heard on 3.7.1992, 14.7.1992, 24.7.1992 and finally, oral hearing was concluded on 29.7.1992 when following order was passed and Counsel's prayer to file written arguments was allowed:

"During the course of hearing of this references we had the advantage of hearing. Shri B.K. Juneja, Assistant Narcotics Commissioner who deputises in this matter for the Commissioner of Narcotics, whose office is situated in the city of Gwalior. It is Central Government Officer and the Commissioner's jurisdiction prevails over the entire Country.

We told Shri Juneja to file affidavit in regard to statements which are made by him today in Court before us, but would like to record briefly dew facts which we found pertinent for disposing of the Reference. For opium, he told us, the transport-route is the Agra-Bombay Road; it comes from Punjab and Rajasthan mainly and goes to Bombay. One of the main trafficking centres is Guna in relation to the crop cultivated locally in the State and in the neighbouring State of Rajasthan. He told us further that of late, it has been discovered that in Gwalior and Guna and neighbouring areas, technical knowledge has been acquired for conversion of opium into heroin and that is dangerous because trade in heroin is highly furt

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Judicial Analysis

SupremeToday

MADHYA PRADESH HIGH COURT (FB)Dr. TN. Singh, S.K. Dubey and R.C., Lahoti, JJ.Ram Dayal - PetitionerversusCentral Narcotic Bureau - RespondentMisc. Crl. Case No. 273 of 1992 Decided on 3.9.1992Counsel for the parties;For the Petitioner: Rakesh Saxena.For the Respondent: N.P. Mittal and J.P. Gupta.

IMPORTANT POINTEven if charge-sheet is filed after-90 days of the arrest of the accused on that (ground itself the person charged u/s.18 of the Narcotic Drugs and Psychotropic Substances Act, is not entitled to get bail from the High Court.

Cases Referred (1)

Judicial Analysis

IMPORTANT POINT
Even if charge-sheet is filed after-90 days of the arrest of the accused on that (ground itself the person charged u/s.18 of the Narcotic Drugs and Psychotropic Substances Act, is not entitled to get bail from the High Court.