The main legal point established in the judgment is that the entitlement to bail under Section 167(2) of the Code of Criminal Procedure is contingent upon the prosecution's failure to file the challan within the stipulated period, and the court's duty to consider the factual matrix of the case in determining the entitlement to bail.

Gopal Krishan Vyas, J.-Heard learned Counsel for the petitioner.

2. The petitioner preferred this bail application under Section 439, CrPC for seeking bail on the ground that as per Section 167(2), CrPC the prosecution was to file challan within a period of 180 days but the charge-sheet has been filed against the petitioner after 180 days, therefore, as per Section 167(2) CrPC, read with Section 36 of the N.D.P.S. Act he is entitled to be released on bail.

3. It is further contended that on 10.02.2006, an application for bail was filed and it was prayed that as per Section 167 (2) of the Code of Criminal Procedure because the prosecution has not filed challan within 180 days, the petitioner is entitled to be released on bail and the petitioner is also ready to submit the necessary sureties. It is contended by learned Counsel for the petitioner that the petitioner was arrested by the police on 08.08.2005. During the investigation, heroine was recovered by the

S.H.O. and after his arrest no challan has been filed against the petitioner upto 10.02.2006. Learned Counsel for the petitioner further contended that application was to be decided by the trial Court on the same day i.e., 10.02.2006, but the application was not decided and time was granted to the Spl. Public Prosecutor to call the case diary for 13.02.2006; and, 13.02.2006, the bail application was heard and in the meantime challan was filed against the petitioner by the prosecution, therefore, on 17.02.2006, the petitioners bail application was rejected on the ground that the challan has been filed against the petitioner so bail cannot be granted to him by way of consideration of the matter under Section 167(2) of the Code.

4. Learned Counsel for the petitioner next contended that the trial Court has not applied its mind on law and in view of the Judgment of the Supreme Court, reported in 1995 (4) SCC 190, the petitioner is entitled to the benefit of bail after the prosecution having failed in filing the challan within the stipulated period of 180 days. Reliance has also been placed by learned Counsel for the petitioner on the Judgment s reported in 2001 CrLJ 1832, 1990 (4) RCC, 1984 RLR 1040 and contention is advanced that the law is settled that in case of application under Section 167(2), CrPC, if the accused is ready to submit surety and till date no challan or charge-sheet has been filed and period of 180 days has already elapsed then, in that case, the right of the accused to bail is indefeasible and his right is required to be enforced.

5. Learned Counsel for the petitioner relied upon the Judgment in the case of Mohamed Iqbal Madar Sheikh & Ors. vs. State of Maharashtra, reported in 1996 (1) SCC 722, and pointed out that default in submission of charge-sheet within the statutory period renders the accused entitled to bail. Learned Counsel for the petitioner invited attention of the Court towards Paras 10, 11 and 12 of the said Judgment . Paras 10, 11 and 12 of the Judgment read as under;-

"It was then submitted that in the present case the appellants have been denied the benefit of proviso (a) to Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) of their being released on ground of default in submission of the charge-sheet within the statutory period specified. Sub-section (4) of Section 20 of TADA makes the provision of Section 167 of the Code applicable in respect of offences under TADA except that the periods prescribed for the authorised detention in respect of such offences during which the investigation should be completed are different. After the expiry of periods which have been specified in Section 20(4)(b) and Section 20(4)(bb), the accused for an offence under the TADA acquires the right to be released on bail in terms of Proviso (a) to Section 167(2) of the Code. It need not be pointed out or impressed that in view of a series of Judgment s of this Court, this right cannot be defeated by any Court, if the a