1. - The instant miscellaneous petition has been filed by the petitioner against the order dated 19.6.2012 passed by the learned Special Judge, N.D.P.S. Cases, Chittorgarh in connection with F.I.R. No. 72/2012 registered at P.S. Badi Sadri.

2. Counsel for the petitioner contends that the petitioner was apprehended on 12.3.2012 with the allegation that he was found cultivating cannabis plants. Learned counsel submits that such offence as per Section 20 sub-clause (a) is punishable with imprisonment which may extend to 10 years and fine, as such the compulsive period available to the prosecution for filing challan as per Section 167(2) Cr.P.C. would be 60 days because admittedly the case has not been registered in this matter for the offence under Sections 19, 24, 27A of the N.D.P.S. Act and does not involve commercial quantity. Learned counsel submits that it was the obligation of the prosecution to file a charge sheet in the matter within a period of 60 days from the date of arrest of the accused and as the charge sheet was not filed within the said period no sooner the accused moved an application for seeking release under Section 167(2) of the Cr.P.C. he acquired an indefeasible right to be released on bail. He places reliance on the decision of the Supreme Court in Uday Mohanlal Achatya v. State of Maharashtra, reported in 2001 Cr.L.R. (SC) 472 . Learned counsel has also placed reliance on a decision of this Court in the case of Hira Lal v. State of Rajasthan, reported in 2005 (2) RDD 400(Raj.) and submits that this Court while considering the provisions of N.D.P.S. Act in reference to Section 167(2) Cr.P.C. has held for offences which are punishable upto 10 years, the limitation for filing charge sheet under Section 167(2) Cr.P.C. would be of 60 days and not of the longer period of 180 days. Learned counsel thus submits that as admittedly in this case charge sheet was filed after the period of 60 days and before filing of the charge sheet the accused had already moved an application for being released on bail, he had to be released mandatorily as per Section 167(2) of the Cr.P.C. Learned counsel submits that the learned Special Judge has misconstrued the judgment of the Apex Court in the case of Rajeev Chaudhary v. State (N.C.T.) of Delhi, reported in 2001 Cr.L.R. (SC) 452 .

3. Learned Public Prosecutor, on the other hand, has opposed the prayer made by the counsel for the petitioner.

4. Upon consideration of the arguments advanced at the bar and after going through the relevant provisions of law it is evident that the punishment which is applicable in the case of cultivation of cannabis plant (as alleged against the petitioner) as per sub-clause (a)(1) of Section 20 of the N.D.P.S. Act is imprisonment for a term which may extend to 10 years and a fine which may extend to one lakh rupees. Admittedly in this case the accused was arrested for the offence of cultivating cannabis plants punishable under Section 20(1)(a) of the N.D.P.S. Act with imprisonment upto ten years. Charge sheet was not filed against him within a period of 60 days and ultimately on 19.6.2012, the accused moved an application under Section 167 Cr.P.C. for being released on compulsive bail and the trial Court rejected the application on the very same day. The bar of 180 days which is imposed by Section 36A(4) is for the offence involving Sections 19,24 and 27A or commercial quantity. Obviously the said bar does not apply to the case of the petitioner. In the case of Rajeev Chaudhary (supra) the Apex Court was dealing with the case wherein the offence was under Section 386 I.P.C. The punishment provided for the said offence is imprisonment for a term which may extend to 10 years and also fine. The Apex Court in that case approved the order passed by Magistrate whereby the accused was released for non filing of the charge sheet within 60 days. It is obviously that the sentence of imprisonment for the offence under Section 20(1)(a) of the N.D.P.S. Act