The provisions of Section 37 of the NDPS Act, which exclude the applicability of Section 167 of the Code of Criminal Procedure, do not apply to cases where the accused is not charged with any offence under the NDPS Act.

Sat Pal, J.

1. This petition has been filed by the petitioner under Sec.439 of the Code of Criminal Procedure seeking bail pending trial in the case F. I. R No.44, dated 13th March, 1995 registered at Police Station Baragudha District Sirsa under Secs. 15/16 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter ref erred to as the Act ).

2. Briefly stated, the facts of the case are that information was received by the patrolling party headed by S. H. O. Police Station Baragudha that one person namely, Jarnail Singh caste Jat was living with his cousin brother Munna alias Joginder Singh and doing the business of Chura Post (Poppy husk) in the field of his brother. Accordingly, the said S. H. O. along with the Police Party reached the fields of Munna and found that 3-1/2 bags of Poppy husk were lying near a person who stated his name as Pappi, son of Jamail Singh. It is further alleged in the F. I. R that the said Pappi was asked as to whether he would like to be searched before a Gazetted Officer or a Magistrate or by the said S. H. O. , and Pappi stated that he wanted to be searched before any Gazetted Officer. Thereafter, a message was sent to D. S. P. Ram Nath, and the said D. S. P. came at the spot an a gave the orders of the search and as a result thereof, 31/2 kags of poppy husk were recovered and after drawing 100 grams from each bag as sample, the remaining poppy husk was weighed and found 39.00 Kgs. in each bag and after preparing one Pulanda of sample, and the remaining Poppy Husk was sealed through stamp RW and Pappi was taken into custody.

3. Notice of this petition was issued to A. G. , Haryana on 2nd May, 1995.

4. During the pendency of the petition, an application bearing No. Cr. Misc. No.10524 of 1995 was filed on behalf of the petitioner, wherein it was prayed that the petitioner be permitted to raise fresh grounds for bail under Sec.167 (2) of the Code of Criminal Procedure, and the petitioner be also allowed to file an additional application regarding illegal arrest of the petitioner on 13th March, 1995. Notice of this application was issued to A. G. , Haryana on 16th June, 1995 and on direction of the court, the learned A. G. Haryana accepted the notice of the application on the same day, and it was directed that this application would be heard along with the main case on the next date of hearing. Reply to this application was filed on 4th June, 1995, and the case was adjourned to July, 1995. On 11th July, the case was adjourned to 14th July, 1995.

5. Arguments on the main petition as well as on the application have been heard.

6. In view of the facts stated in the application, Cr. Misc. NO.1 0524 of 1995 is allowed and the affidavit of Joginder Singh and photostat copy of the application dated 13th March; 1995 filed before the Judicial Magistrate, Sirsa, are permitted to be brought on record. As already stated, reply to this application as well as to the main petition has already been filed on behalf of the State.

7. Mr. Thind, learned counsel for the petitioner submitted that as per the F. I. R, the time of the occurrence, is 6.15 P. M. on 13th March, 1995. Whereas the petitioner had already moved an application on the morning of 13th March, 1995, stating therein that the petitioner had been lifted by the Police of Baragudha Police Station in the morning itself and a photo copy of the said application which is on record, clearly shows that the Judicial Magistrate concerned had passed an order at 10.15 A. M. on the same day calling for comments of the S. H. O. Baragudha, and there is an endorsement on the back of the said application by the said S. H. O. that no such person had been arrested by the Police of Baragudha Police Station on that day. He further submitted that though the F. I. R indicates that the petitioner was apprehended by the Police Party headed by the S. H. O. Police Station Baragudha but in the reply filed by the D. S. P. (H) Sirsa on behalf of the State of Haryana, it