SHAMSUDDIN AHMED, J, J.

( 1 ) THIS is an application for bail under section 439 of the Criminal Procedure Code. An application for bail by the petitioner was filed before the learned Chief Judge, City Sessions Court and was rejected by an order dated 28-5-1990. In the said impugned order the learned Judge held that the provisions of section 167 of the Criminal Procedure Code arc not attracted in a case under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and further held that provisions of section 37 of the NDPS Act have imposed limitations on the court for granting bail and accordingly considering the limitations imposed, the learned Judge was pleased to reject that application.

( 2 ) MR. Jaiswal, learned Advocate appearing for the petitioner, has submitted that since the petitioner is being detained in custody for more than ninety days and no charge-sheet has been filed, he is entitled to the benefit of section 167 of the Criminal Procedure Code. Mr. Jaiswal has relied on a decision. In the said decision the Supreme Court had occasion to consider a case if benefits of section 167 (2) of the Criminal Procedure Code can be attracted to a case under the NDPS Act? The Supreme Court held that an order of release on bail under section 167 (2) of the Criminal Procedure Code may be termed as an order of default. Indeed, it is a release on bail for the default of the prosecution in filing chargesheet within the prescribed period. The right to bail under section 167 (2) proviso (a) tereto is absolute. It is legislative command and not courts discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/ 60 days, as the case may be, the accused who is in custody, should be released on bail. At that stage merits of the case are not to be examined. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days and he must pass an order of bail communicating to the accused to furnish the requisite bail bond.

( 3 ) MR. N. A. Chaudhury, learned Additional Public Prosecutor appearing for the State has opposed the contention of Mr. Jaiswal. According to him, the Supreme Court in the aforesaid decision did not consider the impact of section 37 of the NDPS Act, as amended. According to him, any court granting bail has to consider the conditions laid down in section 37. Accordingly only because of expiry of that period, the learned Special Judge is not bound to release the accused petitioner on bail. In support of this contention, he relied on a decision of this Court of a Division Bench on an application for bail filed by one Biswanath Aggarwal and the order was passed by that Bench on 25/7/1990. We have perused that order. It appears to us that the learned Judge posed the question whether section 167 (2) of the Criminal Procedure Code is attracted to a case under the NDPS Act. Therefore the Division Bench dealt with the decisions cited before it by the learned Advocates for the parties and ultimately held that those decisions were not applicable. The Division Bench disposed of the application on a finding that because the conditions of section 37 NDPS Act were not satisfied, the bail to the petitioner in that case Could not be granted. Since that Division Bench has not come to a positive finding on the question whether section 167 (2) is attracted to a case under the NDPS Act. We are unable to consider this decision as a direct one of the point.

( 4 ) MR. Chaudhury drew our attention to an unreported decision of the Bombay High Court circulated by the Central Board of Excise and Customs. It is a single Bench decision (Sasibala Nair v. Intelligence Officer, Narcotic Control Bureau The learned single Judge of that Court held that because a person has to be released under section 167 of the Criminal Procedure Code on bail, the conditions of bail imposed by Section 37 has to be considered. There is no case of automa

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