IMPORTANT POINT
Bail granted u/s 167(2) Cr. P. C. is not subject to restrictions contained in section 37 of NDPS Act & such bail can not be cancelled merely on filing of challan.

JUDGMENT

P.K. Jain, J. - In this petition filed under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the Code) the following two questions arise for consideration:

(i) Whether Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) overrides Section 167(2) of the Code and bail cannot be granted in a case registered under the Act unless conditions contained in clauses 0) and (ii) of Section 37(1)(b) are satisfied?

(ii) Can bail granted under the proviso to Sub-section 2 of Section 167 of the Code for failure to complete investigation within the period prescribed thereunder be cancelled merely on, the presentation of the challan (charge-sheet) at any time thereafter?

2. These questions are .to be answered in the backdrop of the following fads:

On 19.3.1995, the petitioner was arrested by Station House Officer, Police Station Lopoke and 5 kilogram of opium was recovered from him. A case F.I.R. No.,34 of 1995,under Section 18 of the Act was registered against him at the said Police Station. The prosecution could not complete the investigation and for the charge sheet within the stipulated period of 90 days. Consequently the petitioners was enlarge on bail by order dated 26.6.1995 keeping in view the provision of Section 167 (2) of the Code.

3. After the challan was field the prosecution moved an application for cancellation of the bail under section 437(5) of the code alleging therein that huge recovery of opium was effected from the accused and he could not be released on bail under Section 167(2) of the Code in view of the provisions of Section 37 of the Act. This plea of the prosecution prevailed with the Additional Sessions Judge, Amritsar and the bail granted to the petitioner was cancelled vide order dated 21.9.1995. For this view the Additional Sessions Judge placed reliance inter-alia upon a judgment of the apex Court rendered in Rajni. Kant Jivan Lal Patel v. Intelligence Officer NCB1.

4. Shri D.S. Pheruman, Advocate, learned counsel for the petitioner has argued that Section 37 of the Act is not applicable unless bail is sought on the merit of a particular case. It has been urged by the learned counsel that when bail is sought on account of default of the prosecution agency in completing the investigation and filing a charge-sheet within the prescribed time, the accused becomes entitled to bail on account of mandate of the law and the same cannot be cancelled merely on the ground that subsequent thereto a charge sheet has been filed and there is huge recovery of narcotic from the possession of the accused. Reliance for this contention has been placed upon a well known decision of the Supreme Court rendered in Aslam Babalal Desai v. State of Maharashtra2.

5. On the other hand learned Station Counsel has contended that the provisions of Section 37 override the provision of Section 167(2) of the Code and bail cannot be granted to an accused unless the conditions contained in Section 37 of the Act are satisfied. It is further contended that even if the bail is granted on account of the default of the prosecution the same and be cancelled and the accused can be taken back into custody by the court after the default is removed and a challan is presented before the court.

6. The first question referred to above has been authoritatively answered by their Lordship of the Supreme Court in Union of India v. Thamisnarasi and others3, as follows:

"The limitation on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr. P.C. The only fact material to attract the proviso to subsection (2) of Section 167 is the default i