1990 (11) TMI 153 - HC - Customs

Issues Involved:
1. Applicability of Section 167(2) of the Cr.P.C. to the N.D.P.S. Act.
2. Entitlement to bail under Section 167(2) of the Cr.P.C.
3. Prematurity of the Department's application for cancellation of bail.
4. Inherent powers of the Court under Section 482 of the Cr.P.C.

Issue-wise Detailed Analysis:

1. Applicability of Section 167(2) of the Cr.P.C. to the N.D.P.S. Act:
The primary issue revolves around whether Section 167(2) of the Cr.P.C., which mandates bail if a chargesheet is not filed within 90 days, is applicable to offenses under the N.D.P.S. Act. The learned Spl. Judge had referred this question to the Division Bench due to conflicting views among judges. The Applicant/Accused sought interim bail pending this decision, arguing that the favorable interpretation by Deshpande J., who held that Section 167(2) applies to N.D.P.S. Act offenses, should be followed.

2. Entitlement to Bail under Section 167(2) of the Cr.P.C.:
The Court reiterated that the proviso to Section 167(2) creates an absolute right to bail if the chargesheet is not filed within 90 days. This right is described as an "order-on-default" rather than on merits. Despite the chargesheet being filed later, the Applicant/Accused is entitled to bail, though the State can seek cancellation post-filing. The Court emphasized that the bail granted under this provision is not defeated by the subsequent filing of the chargesheet or remand under Section 309(2) of the Cr.P.C.

3. Prematurity of the Department's Application for Cancellation of Bail:
The Court examined whether the Department could seek cancellation of bail before the Applicant/Accused was actually released on bail. Referring to Sections 437(5) and 439(2) of the Cr.P.C., it was noted that these provisions apply to persons already released on bail. The Court concluded that an application for cancellation of bail before the actual release is premature, as the language of the relevant sections implies that the accused must first be released on bail for these provisions to be invoked.

4. Inherent Powers of the Court under Section 482 of the Cr.P.C.:
The Department argued for the use of the Court's inherent powers under Section 482 to cancel bail before the Applicant/Accused's release. However, the Court held that where express provisions exist (Sections 437(5) and 439(2)), recourse to inherent powers is not permissible. The cited case of Department of Central Excise v. Rajesh Tulsidar did not specifically address this issue, thus offering no assistance.

Conclusion:
The Court dismissed the Department's application for cancellation of bail as premature. It granted interim bail to the Applicant/Accused pending the Division Bench's decision on the applicability of Section 167(2) to N.D.P.S. Act offenses. The bail was set at Rs. 25,000/- with two sureties, and several conditions were imposed, including the surrender of the Applicant/Accused's passport and regular attendance at the Customs office.

The operation of the bail order was stayed for one month to allow the Department to challenge it in the Supreme Court.

← Previous Next →