USHA MEHRA, J. (Oral)

( 1 ) IMAM and Megh Raj have been charged under Section 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter called the NDPS Act), 1985. They were arrested "in 31. 8. 91. Allegation of the prosecution is that these two persons were sitting on the Railway platform of Old Delhi Railway Station. They were sitting on two parcels booked through railway and one parcel was lying abandoned. These two petitioners were surrounded by the police and were confronted to show the contents of these three parcels. On being confronted the petitioners admitted that these parcels contained charas . On weighing it was found that three parcels contained 94. 50-Kg. of charas and since then the petitioners are in jail.

( 2 ) PETITIONERS have come up before this Court challenging their detention on the ground that no challan/charge sheet has been filed by the prosecution till date. The period of 90 days from the date of arrest has already expired, therefore, under Section 167 (2) of the Code of Criminal Procedure, the petitioners are entitled to be released on bail. Proviso to Sub Section (2) of Section 167 provides as under:-

". . . . . . AND on the expiry of the said period of ninety days, or sixty days. as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under (his sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter:"

( 3 ) MR. Grover. counsel for the petitioners, contended that the provisions of Sub- Section (2) of Section 167, Cr. P. C. , are mandatory in nature. The petitioners become automatically entitled to be released on bail when the prosecution chooses not to file the charge sheet within 90 days. He, therefore, contended that he is not asking bail on merit, for which he has to justify his action or to prove the conditions stipulated under Section 37 of the N. D. P. S. Act. Petitioners are entitled to be released on bail because of the default of the prosecution in not presenting the charge sheet within the period stipulated under the Act. He has placed reliance on the observation made by the Supreme Court in the case of Rajnikant Jivanlal Patel and Anr. V. Intelligence Officer, Narcotic Control Bureau, New Delhi, reported in AIR 1990 Supreme Court, page 71. That was also a case under the NDPS Act and their Lordships observed that:

"an order for release on bail under proviso (a) to S. 167 (2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge sheet within the prescribed period. The right to bail under S. 167 (2) proviso (a) thereto is absolute. It is a legislative command and not Court s discretion. If the investigating agency fails to file charge sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage merits of the case are not to be examined. Not at all. In fact the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. "

( 4 ) MR. Grover, therefore, contended that he is not asking this Court to exercise the discretion for the grant of bail. The provision of Section 37 of the NDPS Act would be attracted if he had come up to ask for the bail on merit and the Court had to use the discretion. In that eventuality the conditions stipulated under Section 37 of the Act would be attracted. But in the case in hand because of default of prosecution he is entitled to be released even if the quantity alleged it have been recovered is excessive. That cannot be a ground for depriving the petitioner the right which has already accrued in his favour because of the default of the prosecution.

( 5 ) ON the other hand Mr. S. Lal, appearing for the respondent contended that

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