AMOL RATTAN SINGH, J.

Learned counsel for the petitioner has addressed detailed arguments on the issue over a few dates, where, initially, this Court was not inclined to agree to the submissions made by the learned counsel, in respect of the applicability of Section 167(2) Cr.P.C. for grant of bail, in view of the fact that the decision on his application for bail, moved under that provision, was still under consideration of the trial Court when the report under Section 173 Cr.P.C. was presented and, as such, this Court was of the opinion that, as per the judgment in Sanjay Dutt vs. State through C.B.I. Bombay, (1994) 5 SCC 410, bail could very well be declined on that very ground, i.e. presentation of the report under Section 173 Cr.P.C. during the pendency of the bail application.

However, Mr. Giri, learned counsel, has placed reliance upon a judgment of the Supreme Court in Uday Mohanlal Acharya vs. State of Maharashtra, (SC) 2001 (2) RCR (Criminal) 452, wherein, after considering Sanjay Dutt's case (supra), it has been held as under:

“In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression 'availed of ' to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand.”

Thus, presentation of the report under Section 173 Cr.P.C., during the pendency of an application for bail, invoking the provisions of Section 167(2) Cr.P.C., obviously has been held to not take away the right of a person for grant of such bail under that provision.

Though in Uday Mohanlal Acharya's case (supra), the Supreme Court was dealing with a case under the Maharashtra Protection of Interest of Depositors (Financial Establishment) Act, 1999, interpretation of the applicability of Section 167(2) Cr. P.C. was discussed, after discussing the Constitution Bench judgment in Sanjay Dutt's case (supra), which was a case related to the Terrorist and Disruptive Activities (Prevention) Act, 1987.

Mr. Ashok Giri, learned counsel, has pointed out that Section 17(5) of the TADA Act is parimateriawith Section 37 of the NDPS Act and as such, the ratio of the judgment would apply to cases under the NDPS Act also.

Now, coming to the issue as to whether the “challan” in this case was presented on the 181st day or the 180th day, after the petitioner was produced in Court on 6.4.2013 and was sent to judicial custody by the Judicial Magistrate.

It is stated, and not denied by the State, that the “challan” was presented on 3.10.2013. As such, after taking into account the fact that the petitioner was sent to judicial custody on 6.4.2013, such date would also have to be counted for the purpose of calculating 180 days, beyond which he cannot be kept in custody, as per Section 167(2) Cr.P.C., read with Section 36A (4) of the N.D.P.S. Act, 1985.

The “challan” was, thus, presented on the 181st day, if 6.4.2013 is also taken into account as the date on which he was in custody.

The fact that the date on which a person is sent to judicial custody is to be counted within that statutory period of 60/90/180 days, was considered by a Single Bench of the Orissa High Court in Ada alias Adeita Behera vs. The State, 1996 Crl. L.J. 3130, wherein the learned Single Judge quoted from the judgment of the Supreme Court passed in Chaganti Satyanarayana vs. State of Andhra Pradesh, AIR 1986 Supreme Court 2130, as under:

“Thus in any view of the matter i