Grant of bail of by High Court of subject to conditions u/s 37, NDPS Act.

Petition under S. 167(2)(a)(ii) and under S. 439 of Criminal Procedure Code for bail.

2. For possession of 30 kilograms of ganja which is an offence punishable under S. 20(b) of N.D.P.S. Act, the petitioner was arrested on 3-4-91. Since then he is in jail. More than 60 days have passed and till now complaint has not been filed. Hence the petitioner prays that he should be released under S. 167(2) Criminal Procedure Code.

3. Mr. T. Sudanthiram, the learned counsel appearing for the petitioners contended that the petitioners were arrested on 3-4-91 for offence punishable under S. 20(b) of N.D.P.S. Act for alleged possession of 30 kilograms of ganja that more then 60 days have passed and charge-sheet was not yet laid and hence under S. 167(2)(a)(ii) Criminal Procedure Code, the petitioners are entitled to bail.

4. Per contra, Mr. M. P. Rajamanickam, the learned Public Prosecutor, contended that petitioners have no absolute right to get bail under S. 167(2)(ii) Criminal Procedure Code, in this case since the petitioners were allegedly in possession of 30 kilograms of ganja and hence are liable to be punished under S. 20(b) of N.D.P.S. Act and the punishment is rigorous imprisonment for five years or more. He further contended that under S. 37, of N.D.P.S. Act the petitioners are not entitled to bail unless they satisfy the requirements of S. 37(b) of the said Act

5. To appreciate the rival contentions, it becomes necessary to extract S. 167 Criminal Procedure Code, S. 439 Criminal Procedure Code and S. 37, of N.D.P.S. Act. Section 167 Criminal Procedure Code reads as follows

167. Procedure when investigation cannot be completed in twenty-four hours -

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by S. 57, and there are grounds for believing that the accusation or information is well-founded, the officer is charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate(2) The Magistrate to whom an accused person is forwarded under this section may, whether he 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 that -

(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 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, and on the expiry of the said period of ninety days, or sixty days, as the case may the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter;

(b) no Magistrate shall, authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police

Explanation 1 - For the avoidance