ORDER

1. The petitioners have filed the present revision under section 397 read with section 401 of CrPC against order dated 28.5.2019 whereby application filed under section 167(2) of CrPC has been rejected.

2. As per prosecution case, on 25.3.2019, on a discreet information, the police stopped Maruti Swift Car bearing Registration No. MP-09-CL-6626. It was found that the vehicle was being driven by the petitioner No.1 and two other petitioners were sitting on the back seat of the car and the plastic bag was found also below the back seat containing 20 Kgs 'Ganja'. After following the due procedure prescribed under law, the police arrested them and after completing the investigation, filed the charge-sheet under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short).

3. The petitioners filed an application under section 167 (2) of CrPC before the Special judge who is having power of the magistrate under on the ground that the challan has not been filed within 60 days from the date of arrest; hence they are entitled for release on bail. The learned trial Court has rejected the application on the ground that 20 Kgs 'Ganja' was recovered from the petitioners which is a commercial quantity and under the provisions of section 36(A)(4) of the NDPS Act and the period under section 167(2) of CrPC for filing the challan is 180 days which can be extended up to one year.

4. After rejection of the application by order dated 28.5.2019, the petitioners approached this Court by way of application under section 439 of CrPC (M.Cr.C. No. 24989/2019) for grant of bail on the ground of 167(2) of CrPC vide order dated 25.6.2019, this Court rejected the application as the petitioners did not file regular bail application under section 439 of CrPC before the Sessions Court before approaching this Court and observed that if they are aggrieved by order dated 28.5.2019 then they have a remedy of challenging order dated 28.5.2019 by way of a revision. Therefore, they have filed the present revision before this Court. It is made clear that they have not filed the application under section 439 of CrPC for grant of bail so far.

5. I have heard the learned counsel appearing for the parties and perused case-diary and the material available on record.

6. Shri Sanjay Sharma, learned counsel appearing for the petitioner, submitted that as per prosecution story, 20 Kg. of 'Ganja' was recovered from the possession of the petitioners, which is less than commercial quantity, therefore, the prosecution ought to have filed the challan within 60 days from the date of arrest. The petitioners were arrested on 28.3.2019 and 61 days in the custody were completed on 27.5.2019, thereafter, challan was filed on 9.6.2019, therefore, they rightly filed an application under section 167(2) of the CrPC Learned Special Judge has wrongly rejected the application on 28.5.2019. Learned Special Judge has wrongly rejected the application on the ground that 20 Kg. of 'Ganja' commercial quantity. He submits the word "commercial quantity" is defined in section 2 (vii-a) of the NDPS Act and according to which, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. The Central Government had issued notification dated 19.10.2001, in which, commercial quantity is mentioned as 20 Kg., therefore, under section 36-A(4) for the offences punishable under section 19, 24 and 27A of the Act of 1985 involving commercial quantity, the period of filing challan is 180 days, hence the petitioners are entitled to be released on bail under section 167(2) of the CrPC In support of his contention, he has placed on the judgment of Full Bench of High Court of Himanchal Pradesh in the case of Katto v. The State of Himanchal Pradesh : LAWS (HP