The right to be released on bail under Section 167(2) of Cr.P.C. is not absolute and can only be enforced prior to the filing of the charge-sheet. Once the charge-sheet is filed, the question of bail is to be considered on merits.

P.K. JAISWAL, J.

1. Being aggrieved by the order dated 26.9.2011 passed by Special Judge NDPS Act, Garoth, in Special Case No. 15/11, whereby learned Special Judge allowed the application under Section 167(2), Cr.P.C., filed by the non-applicants under the default clause, the application has been filed by the applicants -- State for cancellation of bail under Section 439(2) of Cr.P.C. As per prosecution story, on the basis of secret information, one Scorpio Jeep bearing registration No. 17/DA/1444 was intercepted by the police force. They found that driver and one person sitting in front and two other persons were sitting in the one side of middle row out of which one person armed with local revolver (Katta) and another person armed with 12 bore gun. In the last row two persons were sitting and facing to each other. Total six persons were sitting in the said jeep. On interrogation, they disclosed their names as non applicants No. 1 to 6. During search seven mobile phones, 12 -- Bore gun, live cartridges, currency notes and 23 kg affim (opium) was seized in one bag. They were arrested on 28.3.2011 and produced before the Magistrate on 29.3.2011. On 2.4.2011 police remand was taken and they were sent for judicial custody.

2. On 14.9.2011 on behalf of Sub-Divisional Magistrate (Police Garoth) case diary along with report was filed and prayed for further time to file the challan (final report). The learned Special Magistrate NDPS Act, Garoth, after examination of the same granted time to file the final report and fixed the case for 26.9.2011 for filing the final report.

3. It is not in dispute that on 24.9.2011 was Saturday (non-judicial working day) and 25.9.2011 was Sunday, being holiday on 26.9.2011 challan (final report) was filed before the Special Court, Garoth.

4. On 26.9.2011, before filing of challan, an application was moved at 11.15 A.M. on behalf of the non-applicants under Section 167(2) read with Section 439 of Cr.P.C., for release on bail under proviso (a) to Section 167(2) on the default of the prosecution in filing charge--sheet within the prescribed period.

5. The application was filed on the ground that the right to bail under Section 167(2) proviso (a) thereto is absolute. They prayed that the investigating agency failed to file charge-sheet before the expiry of 180 days, the applicants should be released on bail. It is also averred that the provisions contained in 167(2) are mandatory and failure of investigating agency in completing the investigation within the prescribed period entitles the accused to be enlarged on bail.

6. The applicants/investigating agency opposed the prayer for grant of bail before the trial Court on the ground that 23 Kg of affim (opium) has been seized from them, which are much more than the commercial quantity and by reasons of the provisions of Section 36(a) of NDPS Act, 1989, particularly proviso to sub-Section 4 of Section 36(a), the period for filing of challan can be extended for a period of one year subject to the prayer and specific reasons assigned by the investigating agency.

7. Learned Special Judge after appreciating the arguments of the parties came to the conclusion that no application for extension of period was filed nor Public Prosecutor ever prayed for extension of time. It is also held that on 26.9.2011 when the challan was filed, the accused persons have completed 182 days and, therefore, they are entitled for grant of bail and allowed their application.

8. It is submitted by learned Government Advocate that 180 days would start from the date of first remand. He further submitted that 25th September, 2011, was holiday. After deducting the said two days the challan was filed in 180th day, after remand of the accused, the learned Special Judge committed an error in computing the period and held that challan was filed on 182nd day and erred in releasing the non-applicants on bail under the default clause. His third contention was that the right under Section 167(2) Cr.