1990 (11) TMI 426 - HC - Indian Laws

Issues Involved:
1. Applicability of Section 167(2) of the Criminal Procedure Code (Cr.P.C.) to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act).
2. Entitlement to bail under Section 167(2) of the Cr.P.C.
3. Premature application for cancellation of bail.
4. Inherent powers of the Court under Section 482 of the Cr.P.C.
5. Conditions for granting interim bail.

Issue-wise Detailed Analysis:

1. Applicability of Section 167(2) of the Cr.P.C. to offences under the N.D.P.S. Act:
The primary issue is whether Section 167(2) of the Cr.P.C., which mandates bail if the charge-sheet is not filed within a specified period, applies to offences under the N.D.P.S. Act. The Division Bench of the High Court was referred to resolve this difference of opinion between two judges. One judge had previously held that Section 167(2) Cr.P.C. does not apply to N.D.P.S. Act offences, while another judge disagreed, necessitating a referral to the Division Bench for a conclusive decision.

2. Entitlement to bail under Section 167(2) of the Cr.P.C.:
The Applicant/Accused was entitled to bail under Section 167(2) Cr.P.C. because the charge-sheet was not filed within 90 days. The Court emphasized that the proviso to Section 167(2) creates an "absolute right" for the accused to get bail if the charge-sheet is delayed. This right is described as an "order-on-default" rather than an order on merits. The Supreme Court's ruling in Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi, supports this interpretation, asserting that bail can be granted even if the charge-sheet is filed subsequently, though the State can seek cancellation of bail post-filing.

3. Premature application for cancellation of bail:
The Department's application to cancel bail before the Applicant/Accused was released on bail was deemed premature. The Court clarified that under Section 439(2) of the Cr.P.C., cancellation of bail is only possible after the accused has been released on bail. The judgments of the Rajasthan and Gujarat High Courts supported this view, emphasizing that the language of Section 439(2) is clear and explicit, necessitating the actual release of the accused before bail can be canceled.

4. Inherent powers of the Court under Section 482 of the Cr.P.C.:
The Department argued that the Court could use its inherent powers under Section 482 Cr.P.C. to cancel bail before the accused's release. However, the Court held that when express provisions exist in the Cr.P.C. (such as Sections 437(5) and 439(2)), recourse to inherent powers under Section 482 is not permissible. The Court cited R. P. Kapur v. State of Punjab to support this principle. The cited case of Department of Central Excise v. Rajesh Tulsidar was distinguished as it did not specifically address the issue at hand.

5. Conditions for granting interim bail:
Given the delay in the Division Bench's hearing and the prolonged incarceration of the Applicant/Accused, the Court granted interim bail under Section 167(2) Cr.P.C. pending the Division Bench's decision. The bail was granted with conditions: the Applicant/Accused must provide a bail bond of Rs. 25,000 with two sureties, surrender his passport, attend the Customs Office twice a week, provide his residential address, not leave his residence without permission, attend court hearings, and not tamper with prosecution evidence. Breach of these conditions could result in bail cancellation.

Conclusion:
The Criminal Application No. 1712 of 1990 was dismissed as premature. Criminal Application No. 1614 of 1990 was allowed, granting interim bail to the Applicant/Accused pending the Division Bench's decision on the applicability of Section 167(2) Cr.P.C. to N.D.P.S. Act offences. An interim stay of the bail order was granted for one month to allow the Department to challenge the order in the Supreme Court.

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