CAV Order

1. This criminal revision has been preferred by the applicant being aggrieved by the order dated 18-8-2020 passed in Special Criminal Case No. 6/2020 by the Special Judge, NDPS Act, Raipur (CG) whereby the application under Section 167(2) of the Criminal Procedure Code, 1973 (in short 'Cr.P.C.') filed by the applicant/accused has been dismissed.

2. Brief facts of the case are that during investigation of Crime No. 226/2019 registered at Police Station Modahapara, Raipur, police recovered 50 cartons, each containing 144 bottles, each bottle containing 100 ml, total 7,20,000 ml Codeine Phosphate RC Kuff Syrup from the possession of the applicant, which was kept by him without any authority of law. The applicant on 10-8- 2020 filed an application before the Special Judge, NDPS Act, Raipur, for grant of default bail under section 167(2) of the Cr.P.C. mentioning that the applicant was arrested on 15-5-2020 for offence punishable under Section 21(b), 29 and 32 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and police of PS Modahapara got his judicial remand till 29-5-2020. Thereafter, on an interval of 14 days till 24-8-2020, police has been getting judicial remand of the applicant under Section 21(b), 29 and 32 of the NDPS Act. Out of above sections, Section 21(b) of the NDPS Act, provides maximum punishment for a term which may extend to 10 years. Therefore, under the proviso (a) of sub-section (2) of Section 167 of the Cr.P.C., police was required to file charge sheet against the applicant within 60 days which was completed on 15-7-2020, but the police did not file charge sheet neither within 60 days i.e. 15-7-2020 nor till the date of filing of application on 10-8-2020. Thus, the applicant is entitled to get default bail under Section 167(2) of the Cr.P.C.

Therefore, he be granted default bail.

3. On 18-8-2020 the application filed by the applicant was dismissed by learned Special Judge, NDPS Act, Raipur holding that police is not bound to file charge sheet within 60 days in this case because quantity of seized Codeine Phosphate RC Kuff Syrup from the applicant is total 7,20,000 ml which is a commercial quantity, therefore, provisions of Section 36A(4) of the NDPS Act are attracted in this case. Hence, this revision.

4. Learned counsel for the applicant submits that after arrest of accused on 15-5-2020, in every remand application, police took the judicial remand of the applicant mentioning Section 21(b), 29 and 32 of NDPS Act till 24-8-2020. The bail application M.Cr.C. No. 2927/2020 filed by the applicant under Section 439 of the Cr.P.C. was dismissed by the High Court on 5-8-2020, wherein Hon'ble High Court opined that psychotropic substance seized from the applicant is more than commercial quantity. Thereafter also, police got judicial remand of the applicant from 12-8-2020 to 24-8-2020 mentioning Section 21(b), 29 and Section 32 of the NDPS Act whereas 60 days were completed on 15-7-2020. On the date of filing of application for grant of default bail under Section 167(2) of the Cr.P.C. i.e. on 10-8-2020, the applicant was in judicial remand under Section 21(b), 29 and 32 of the NDPS Act. These offences are punishable for the term which may extend to 10 years, therefore, the applicant was entitled to get default bail under Section 167(2) of the Cr.P.C. because in that period, the sections of offence registered by police were for intermediary quantity of contraband article. Despite that, learned trial Court dismissed the application of applicant holding the quantity of psychotropic substance seized from him was commercial quantity.

5. Learned counsel for the applicant also submits that learned trial Court has taken this view on the basis of order dated 5-8- 2020 passed by coordinate bench of this Court in MCRC No. 2927/2020 in which it was held that quantity of Codeine Phosphate RC kuff Syrup seized from the applicant is more than commercial quantity but Hon'ble Supreme Court in SLP (