The right to bail under S.167(2) of the Code of Criminal Procedure is absolute, and the restriction on bail under S.37 of the N.D.P.S. Act is subject to the provisions of S.167(2).

The petitioners are accused Nos. 7 and 8 in Crime No.1 of 1990 of Excise Circle, Mananthavady range. The allegation against the petitioners is that they along with accused 1 to 6 trespassed into Beggar range reserve forest and cultivated ganja and the cultivation of the same is prohibited and made punishable under S.20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioners were arrested and taken into custody on 16-6-1990. The petitioners contend that they have not committed any offence and they are innocent and that they may be released on bail. Petitioners have also contended that they are entitled to be released on bail under S.167(2) of the Code of Criminal Procedure.

2. The petition is opposed by the Public Prosecutor. It is pointed out that the allegation against the accused is that they have committed the offence punishable under S.20(2) of the N.D.P.S. Act and therefore they are not liable to be released on bail in view of S.37 of the Act. S.37 of the Act says that with standing anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence punishable for a term of imprisonment of 5 years or more under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the-Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not to commit any offence while on bail. The learned Public Prosecutor further contended that in view of the above provision the accused is not liable to be released on bail. It was also contended that at this stage the accused shall not be released on bail invoking the provisions of S.167(2) Cr. P.C.

3. S.167 Cr. P.C. lays down the procedure regarding the custody of the accused when the investigation of the case cannot be completed within 24 hours. If the investigating officer finds that the investigation cannot be completed within a period of 24 hours as fixed under S.57 of the Code, the investigating officer shall forthwith transmit to the nearest judicial magistrate a copy of the entries in the diary and the accused also shall be produced before the magistrate. Then the magistrate, if he thinks fit, shall authorize detention of the accused for a term not exceeding 15 days. Under S.167(2)(a) Cr. P.C. it is provided that the magistrate may authorize the detention of the accused person beyond the period of 15 days, if he is satisfied that adequate grounds exist for doing so, and the proviso further says that the magistrate shall not authorize detention of the accused person in custody under this paragraph for a total period exceeding (1) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life and (2) sixty days, where the investigation relates to any other offence. The latter part of the proviso says that on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused shall be released on bail, if he is prepared to furnish bail and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII of the Code.

4. The question that is to be considered is whether the restriction imposed as per S.37 of the Act is subject to the provisions relating to S.167(2) of the Code. The Supreme Court has observed in Rajnikant Jivanlal v. Intelligence Officer (1989) 3 S.C.C. 532) that:

"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 at all. In fact, the Magistrate has no power to remand a person beyond the stipu