The weighment of the total contraband recovered from each accused should not be clubbed together to find out if it exceeds the commercial quantity, and the benefit of the proviso to Section 167(2) of the Code would endue to an accused involved in the offences under NDPS Act.

JUDGMENT

"Contention of learned Public Prosecutor that in the first information report, in question, the weighment of the total contraband (Ganja) recovered is 34.160 kg, which is more than the commercial quantity, there fore, the offence should be treated as the one attracting the sentence awardable for possession of commercial quantity cannot be accepted for the simple reason that it is not even the case of prosecution in the FIR that the contraband was jointly recovered from all four accused from a single container. The case which they have set up in the first information report is that the Ganja in the quantity of 8.720 kg was recovered at the instance of accused petitioner, 8.560 kg from Dhirendra Barman, 8.460 kg. from Viresh Sarkar and 8.420 kg. from Anil Verma, individually from separate bags carried by each one of them. The argument cannot therefore be accepted on the anology that since they are accused in one single FIR, therefore, the contraband recovered from each one of them should be clubbed together to find out if it exceeds the commercial quantity"

7- mDr fu.kZ; ds i`"B la[;k 06 vkSj 07 esa ;g vfHkfu/kkZfjr fd;k x;k gS fd %&

"A Coordinate bench of this Court in Akhlak @ Vilsan & Anr. Vs. State of Rajasthan-2010 WLC (Raj.) UC 553 was dealing with a case where recovery of 65 grams charas was made from the possession of accused-petitioner Akhlak and 60 gms 2.40 mg was made from the possession of accused petitioner Monu. It was held that sub-clause (b) of Section 20 would be attracted. The recovery of charas shown from the possession of both accused persons was found to be less than 100 gms and therefore it was held to be a small quantity. It was held than since the quantity of contraband in possession of each accused was less than the commercial quantity, the Magistrate is not competent to try the case. In Ram Karan @ Ram Varan, supra it was held that period of 90 days as per Section 167(2) Cr.P.C. is attracted only in those cases where imprisonment is of 10 years or more. In Smt. Anita Devi, supra, the coordinate bench of this Court has granted bail to the accused-petitioner on the ground that quantity of contraband recovered individually from the petitioner was less than the commercial quantity and upper limit for filing challan is 60 days as per Section 167(2) of Cr.P.C. A coordinate bench of this Court in Nasir, Supra also granted bail to the accused from whose possession recovery of 1.5 kg Opium has been made and charge sheet was not filed. It was held that period of filing charge sheet is 60 days and therefore petitioner is entitled to bail."

8- mDr uthj ds i`"B la[;k 09 o 10 esa ;g vfHkfu/kkZfjr fd;k x;k gS fd %&

"It is therefore clear that for offences where the quantity of contraband recovered is lesser than the commercial quantity, for which the sentence is upto 10 years with fine extending to Rs. 1,00,000 the period for filing charge sheet is 60 days as per Section 167(2) of Cr.P.C. Where, however, the recovered contraband involves commercial quantity and the accused is punishable with regorous imprisonment for a term which may extend to 20 years and fine which may extend to Rs. 2,00,000, the period for filing charge sheet as per Section 36(D)(iv) of NDPS Act would be 180 days."

"Where charge sheet is not filed within a period of 60 or 90 days and the accused moves application for being released on bail u/s 167(2), Proviso (a) of the Cr.P.C. and offers to furnish bail, he can be said to have availed of indefeasible right for being released on bail. If the application of the accused moved u/s 167(2) Cr.P.C. is erroneously rejected by the Magistrate and the accused then approaches higher forum for bail and the charge sheet is filed in the meantime, it does not extinguish the accrued right of the accused to be released on bail u/s 167(2) Cr.P.C.."

7. It is now well-neigh settled that benefit of the proviso to Section 167 (2) of the Code would endue to an accused involved in the offences under NDPS Act as well, (v