IMPORTANT POINT
Powers of High Courts to grant bail u/s. 439 Criminal Procedure Code are subject to limitations prescribed u/s. 37 of the ND.P.S. Act and the mere fact that the challan has not been put in within the statutory period as envisaged under the provisions of Section 167(2) of the Code, no right accrues to the accused to ask for bail as a matter of fact.

ORDER

V.K. Bali, J. - The petitioners who seek bail are alleged to have been in possession of 85 bags of poppy husk, each bag containing 35 kgs. The bail is asked for on the solitary ground that the police has not put up the challan within 90 days as required under Section 167(2) of the Code of Criminal Procedure. Reliance of the learned counsel is upon a decision rendered in Ajit Singh v. State of Punjab1 by this Court. It is argued that the Bench deciding the aforesaid matter relied upon Powell Nawana v. State2 a Division Bench judgment of the Delhi High Court; Shivanna v. State3; Surinder Kumar v. State of Punjab4; Baldev Singh v. State of Punjab5 and Rajni Kant Jiwan Lal Patel v. Intelligence Officer N.C. Bureau6. The learned counsel also relies upon the ratio of the judgment in Imman and another v. C.B.I. New Delhi7.

2. Mr. Masih, the learned Assistant Advocate General, Punjab vehemently opposes the prayer for bail and contends that the powers of the Court to grant bail under Section 439, Cr.P.C. are subject to the limitations contained in the amended Section 37 of the Narcotic Drugs and Psychotropic Substances Act and the restrictions placed on the powers of the Court under the said Section are apl1icable to the High Court also in the matter of grantings bail. For his aforesaid stand the learned Assistant Advocate General relies upon the recent decision of the Supreme Court in Narcotic Control Bureau v. Kishan Lal8, and a Full Bench decision of Madhya Pradesh High Court in Ram Dayal v. Central Narcotic Bureau Gwalior9.

The Full Bench of Madhya Pradesh High Court in Ram Dayal's case (supra) while dealing with Narcotic matter and referring to several judgments including that of the Supreme Court in Narcotic Control Bureau v. Kishan Lal case (supra), came to the conclusion that if an accused is arrested under Section 18 of the NDPS Act, he is not entitled to bail from the High Court as a matter of right if challen is not put in Court within 90 days as Section 167(2) proviso is not applicable to proceedings under NDPS Act.

The Delhi High Court by a common order in two petitions filed under N.D.P.S. Act, 1985 held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended provisions of Section 37 of the NDPS Act were not applicable to the High Court. Narcotics Control Bureau challenged the aforesaid order of the High Court and the appeals filed by it were allowed by the Supreme Court in Narcotics Control Bureau v. Kishan Lal (supra). The facts of the case reveal that petitioners therein were arrested under various sections of the NDPS Act. They were refused bail and remanded to judicial custody. On the basis of the report, the Magistrate concerned took cognizance and remanded them to judicial custody. They filed a writ as also criminal miscellaneous in the High Court seeking bail firstly on the ground that they were entitled to bail as required under Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. The learned Single Judge referred the matter to the Division Bench which held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as feters on the High Court in exercise of powers under Section 439, Cr. P.C. for granting bail. It is in these circumstances that the only limited question to be decided by the Supreme Court was as to whether the view taken by the High Court was right or wrong. The Supreme Court, after noticing various provisions and, in particular, Section 37 of the NDPS Act and Section 439 of the Cr.P.C., came to the conclusion that "Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment