In case of non-filing of final report within 90 days accused entitled to be released on bail.

ARUNACHALAM, J.

A common question of law has been urged before us in all these three habeas corpus petition and hence it would be better to dispose of all these petitions through a common order. HCP No. 1676 of 1994 is capable of being disposed of on factual material, without legal ramifications, affecting its termination.

2. Facts in HCP No. 1675 of 1994 : Petitioner Tamizharasi is the wife of Arumugham, whose liberty she has coveted in this Habeas Corpus Petition, alleging that he has been kept under illegal detention in Central Prison, Madras, on and after 27-9-1994. The averments in her affidavit show that Arumugham was arrested on 27-6-1994 from his residence. Neither documents nor contraband stood recovered from him. However, it is alleged by the prosecution that he is involved in the export of certain Narcotic Drugs which were seized in a foreign country. Arumugham was remanded to judicial custody on 26-8-1994. Every 14 days, remand was being extended. The period of 90 days expired on 27-9-1994 and even by then the respondent had not preferred any complaint. Arumugham had earlier preferred a bail application seeking his release, but the same was dismissed on 24-7-1994. A second application for bail was moved by him, which was pending at or about the time when the 90 days period expired. According to her affidavit, it was specifically argued before the Special Judge that the detenu was ready to furnish surety and hence he may be enlarged on bail, since the respondent had defaulted in filing the complaint within a period of 90 days. However, the bail plea of the detenu was negatived and remand was extended.

3. Facts in HCP No. 1692 of 1994 : Petitioner Vijayalakshmi is the wife of Y. V. Nagaraj, who has been similarly detained, in Central Prison, Madras, as detenu Arumugham, concerned in HCP No. 1675 of 1994. It is also evident, that Arumugham and Nagaraj are concerned in the same crime. It appears that Nagaraj was preventively detained by an order of detention clamped under the provisions of PIT NDPS Act. We were informed by counsel on either side that the said preventive order has since been quashed by this Court and the respondent had taken up the matter to the Supreme Court. As in HCP No. 1675 of 1994, Y. V. Nagaraj was also arrested on 27-6-1994 and the period of 90 days expired on 27-9-1994. A bail application was preferred on behalf of Nagaraj before the Special Court seeking release on bail on default made by the respondent in filing the complaint. Bail plea was negatived while remand was directed to be continued. The dismissal of the latest bail application was on 12-10-1994. It appears that the learned Special Judge was not inclined to act under the proviso to S. 167(2) of the Code of Criminal Procedure in view of the pronouncement of a learned single Judge of this Court in Seemsiraj v. Asstt. Collector, Central Excise, (1992) Mad LW (Cri) 387 : (1993 Cri LJ 844) holding that proviso to sub-sec. (2) of S. 167, Cr.P.C. will have no application, where a person has been charged, under any of the offences falling within the scope of Narcotic Drugs and Psychotropic Substances Act.

4. Facts in HCP No. 1676 of 1994 : Petitioner Mohammed Shabeer is the detenu himself. He was arrested on 15-5-1993 for alleged commission of an offence punishable under the NDPS Act. The case of the prosecution appears to be that the petitioner was found travelling in a lorry from which heroin was seized. Arrest memo was served on the petitioner at 11.00 p.m. on 15-5-1993 and he was produced for remand only on 18-5-1993. His remand was extended from time to time. The 90 days period expired on 17-8-1993. Thereafter, the petitioner became entitled to grant of bail under proviso to S. 167(2) of the Code of Criminal Procedure. Petitioner is now incarcerated in Central Prison, Salem. It is not in dispute, that complaint against the petitioner stood filed on 27-9-1993 and till such date, petitioner had not chosen to exercise his right