The proviso to sub-sec. (2) of S. 167 of the Code of Criminal Procedure is applicable to offences under the Narcotic Drugs and Psychotropic Substances Act, and the right to bail under the proviso is absolute. The prosecution has the option to seek cancellation of bail after the defect of non-filing of charge-sheet within the stipulated time is cured, on the ground that the accused has committed a non-bailable offence.

ARIJIT PASAYAT, J.

( 1 ) TITIONER assails the order dated 16-1-1991 passed by the learned Sessions Judge, Koraput, Jeypore, cancelling the bail granted by the learned Sub-divisional Judicial Magistrate, Jeypore.

( 2 ) IT appears that the petitioner was released on bail by extending the privilege provided under proviso (a) to sub-sec. (2) of S. 167 of the Code of Criminal Procedure, 1973 (in short 'the Code' ). The petitioner was arrested for being in illegal possession of 9 Kgs. 600 gms. of Ganja. The petitioner was arrested and was remanded to custody on refusal of bail by the learned Sub-divisional Judicial Magistrate, on 18-8-1990. Petitioner's bail application before the learned Sessions Judge was once turned down on 20-10-1990. Since no final form was received from the investigating agency, application for bail was moved on 22-10-1990 before the learned Sub-divisional Judicial Magistrate, who taking note of proviso (a) to sub-sec. (2) of S. 167 released the petitioner on bail. Subsequently on completion of investigation charge-sheet has been submitted. An application for cancellation of bail was filed by the prosecution. The learned Sessions Judge was of the view that there was material to show that the petitioner had committed serious offence for which punishment up to five years' rigorous imprisonment and fine extending Rupees 50,000/- can be imposed and therefore, the bail granted was to be cancelled. He was of the view that provisions of S. 167 (2) have no application to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act' ). The accused has made this application for interference with the order cancelling bail granted.

( 3 ) IT is submitted that the learned Sessions Judge was not justified in holding that the proviso to sub-sec. (2) of S. 167 was not applicable to offences under the Act and therefore, his order cancelling bail granted is illegal; though the petitioner was released on bail long time back there is no allegation of his having misused the liberty; and therefore cancellation of bail is not proper.

( 4 ) SO far as the question as to whether S. 167 (2) proviso applies to the proceedings under the Act is concerned, I find this Court had occasion to consider this aspect in (1991) 4 Orissa Cri R 162: Dayanidhi Khilla v. The State, where it has been held that the sub-sec. (2) of S. 167 is applicable. Therefore, the contrary view indicated by learned Sessions Judge is indefensible.

( 5 ) THE residual question is whether the bail which was granted in October, 1990 can be cancelled. As observed by the Supreme Court in AIR 1990 SC 71: (1990 Cri LJ 62) Rajanikant Jivanlal Patel v. Intelligence Officer, Narcotic Central Bureau, New Delhi and (1990) 2 Orissa LR 213: State v. Surendranath Mohanty, where an accused has been released by application of the proviso (a) to sub-sec. (2) of S. 167 of the Code and subsequently a charge-sheet has been submitted, it is open to the Court to cancel the bail granted. This is imperated because of the statutory prohibition contained in S. 37 of the Act prohibiting grant of bail in cases involving offences punishable imprisonment for five years and more. While releasing an accused by application of the proviso (a) to sub-sec. (2) of S. 167 merits of the case are not gone into. An order for release under proviso (a) to S. 167 (2) of the Code has been termed as an order on default. It is a release on default of prosecution in not filing charge-sheet or prosecution report, as the case may be, within prescribed period. The right to such bail is absolute, without any discretion and is a legislative command. At that stage merits of the case are not examined. This view has the authority of the apex Court in Rajnikant's case (supra ). The prosecution has option to seek cancellation of bail after defect of non-filing of charge-sheet within stipulated time is cured, on the ground that accused has committed non-bailable offence. Raghubir Singh v. State o