The main legal point established in the judgment is the accrual and availing of the indefeasible right to bail under the NDPS Act when the police fail to file the challan within the stipulated period, as interpreted by the Supreme Court decisions.

H.R. Panwar, J.-By the instant criminal second bail application under Section 439 read with Section 167(2), CrPC, petitioner Hira Lal seeks bail on the ground that for a period of 60 days from the date of his production before the Magistrate , the police failed to file the challan and, therefore, the applicant filed an application seeking bail on the ground that the Magistrate is not competent to authorise detention of the petitioner after 60 days from the date he was initially produced before the Magistrate. The bail application filed by the applicant came to be rejected by the learned Sessions Judge vide order dated 012.2004 holding therein that the period for filing the challan is 90 days and not 60 days.

2. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Carefully gone through the order impugned and the police investigating diary (case diary).

3. The allegation against the petitioner is that he was found in possession of 47.200 kgs of poppy-straw without licence or permit, which is an offence punishable under Section 8/15-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act:). In relation to poppy straw, the "small quantity" as provided in the Central Government Notification S.O. 1955 (E) dated 110.2001 and defined in Section 2 (xxiiia) of the NDPS Act, is lesser than 1000 grams and "commercial quantity" is greater than 50 kg. As defined in Section 2 (viia) of the NDPS Act. She contraband poppy straw alleged to have been recovered from the petitioner is greater than the "small quantity" but lesser than the "commercial quantity". The punishment as provided under Section 8/15-B of the NDPS Act for contravention of the provision involving quantity lesser than commercial quantity but greater than small quantity is rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.

4. Section 36-A (1) (c) of the NDPS Act provides that the Special Court may exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (for short" the Code" hereinafter), in relation to an accused person in such case who has been forwarded to him under that section. Sub-section (2) of Section 167 of the Code provides that the Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, provided (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence.

5. Sub-section (4) of Section 36-A of the NDPS Act provides that in respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for the offence involving commercial quantity the references in Sub-section (2) of Section 167 of the Code thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days.

6. Thus, so far as Proviso (ii) to Sub-section (2) of Section 167 of the Code is concerned, Sub-section (4) of Section 36-