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TMI Blog1994 (9) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... t the delay in sending the property to Court entitles them to be released on bail. 2. The main argument of learned counsel for the petitioners is that on the failure of the prosecution to lay the charge-sheet within 90 days they have to be released on bail under Section 167(2) Cr. P.C. They point out that under Section 167(2) no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding ninety days, where the investigation relates to an offence punishable with death, imprisonment for life, imprisonment for a term of not less than ten years. And the accused person shall be released on bail if he is prepared to and does furnish bail. They argue that Art. 21 and 22 of the Constitution of India cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section. The said clause is clear indication that the directive contained in Section 167(2) proviso is intended to be issued at the appropriate stage even if offences under NDPS Act are involved. If Section 37 of the NDPS Act is allowed to control or restrict the application to proviso to Section 167(2) of the Code, the latter provision would become ineffective and a dead letter. 3. In support of their plea, learned counsel has placed reliance of Berlin Joseph @ Ravi v. State [1992 (1) Crimes 1221] and Md. Abdul v. State of West Bengal [1991 (2) Crimes 741]. In the first case of Full Bench of the Kerala High Court has held that conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending or not. If one reads the provisions of Section 36A and 37 of the N.D.P.S. Act together and, particularly sub-section (2) thereof, it becomes clear that the proviso to sub-section (2) of Section 167 will have no application in such cases where a person had been charged under any of the offences falling within the scope of the N.D.P.S. Act. In Sanjeevi v. State [1993 L.W. (Crl.) 76] Ali Mohammed, J. has followed the said judgment and dissented from the Full Bench decision of the Kerala High Court. He held that the proviso to Sec. 167(2) Cr. P.C. is not applicable to cases covered by Sec. 37 of the N.D.P.S. Act. I am in respectful agreement with the view expressed by the two learned Judges that conditions in Section 37 of the N.D.P.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in Section 37 of the N.D.P.S. Act. The powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the N.D.P.S. Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail". 5. Learned counsel for the petitioners also placed reliance on Aslam Babalal Desai v. State of Maharashtra [1992 SCC (Crl.) 870]. This decision deals with cancellation of bail and I find no relevancy of the same to the present controversy. The observation therein at page 827 that when the Legislature made it obligatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wder. The property was sent to Magistrate only on 12-4-1993. Government Advocate present in Court was unable to give out any reason for the delayed despatch. On those facts, learned Judge was inclined to hold that the petitioner was not guilty of offence. And since no bad antecedents had been placed before him the Court prima facie concluded that the petitioner was not likely to commit any offence while on bail, and accordingly released him on bail. Whereas in the present case learned Additional Public Prosecutor who opposes the bail plea points out that the property in Crl. O.P. No. 6928 of 1994 was sent to the court of XIV Metropolitan Magistrate, Egmore on the very same day of seizure which was 24-4-1994. Learned Magistrate had initialle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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