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TMI Blog1990 (11) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... icant/Accused was arrested on 10-3-89. However, the chargesheet was not filed against him within a period of 90 days, i.e. until 9-6-1989. He, therefore, filed an application for bail on 19-7-1990 under Section 167(2) of the Code of Criminal Procedure, (for short 'Cr.P.C.'). In the meanwhile, the chargesheet was filed on 26-6-1989. The learned Spl. Judge i.e. the Addl. Sessions Judge, Greater Bombay, rejected the bail application on the ground that the question of applicability of Sec. 167(2) of the Cr.P.C. to the person accused of an offence under the N.D.P.S. Act was preferred to the Division Bench by Deshpande J. in Criminal Application No.1702 of 1989 with Criminal Application No. 2105 of 1989, since he disagreed with the view taken by Suresh J. in a previous decision holding that Sec. 167(2) of the Cr. P.C. is not applicable to the persons accused of offences under the N.D.P.S. Act. He, therefore, held that it would not be proper for him to grant bail under Sec. 167(2) of the Cr. P.C. Feeling aggrieved, the Applicant/Accused has preferred the instant Criminal Application No. 1614 of 1990 in this Court claiming interim bail under Sec. 167(2) of the Cr. P.C. pending the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g time since 10-3-1989, the learned Counsel appearing for him has urged before me that the view favourable to the Accused should be followed and he should be granted interim bail under Sec. 167(2) of the Cr. P.C. pending decision by the Divn. Bench in regard to the applicability of the said section to the offences under the N.D.P.S. Act. In my view, the above submission made on behalf of the Applicant/Accused deserves consideration. It has, therefore, to be seen whether the provisions of Sec. 167(2) of the Cr. P.C. are attracted in the instant case. 6. There is not much dispute on facts. The learned Counsel appearing for the Department does not dispute that the chargesheet was not filed within 90 days and, therefore, as per the provisions of Section 167(2) of the Cr.P.C., if it was applicable, the Applicant/Accused would be entitled to get bail. However, what he contends is that although technically bail can be granted to the Applicant/Accused, it should be immediately cancelled looking to the fact that the offence with which he is charged is a serious offence under the N.D.P.S. Act and that the Accused/Applicant is likely to flee from India. The learned Counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat unless the Applicant/Accused is first granted bail and is actually released on bail, there is no right in the Respondent/Department to apply for his arrest and committal to custody which, in other words, is described as cancellation of bail. In support of his submission, the learned Counsel appearing for the Applicant/Accused has relied upon the judgment of Rajasthan High Courl in the case of Dewan v. State (A I R 1971 Rajasthan 77) and also the judgment of the Gujarat High Court in the case of Parshottam Soma v. Stale [(1972) 13 Gujarat Law Reporter 585). On the other hand, it is submitted on behalf of the Respondent/Department that this Court can cancel the bail in exercise of its inherent power under Section 482 of the Cr.P.C. even before the Accused/Applicant is released on bail. In support, the learned Counsel appearing for the Department has placed reliance upon the judgment of this Court in the case of Department of Central Excise v. Rajesh Tulsidar [(1988) (3) Bom. C.R. 466]. 10. The judgments of the Rajasthan and Gujarat High Courts upon which reliance is placed by the learned Counsel for the Applicant/Accused, no doubt, support him. Moreover, the language used in sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It may then be seen that when the Accused is released on bail even under Section 167(2) of the Cr.P.C., the bail granted to him can be cancelled after the filing of the chargesheet only upon the well-known principles laid down by the Supreme Court in its various judgments. The case of Raghubirsingh v. State of Bihar (AIR 1987 Supreme Court 149) is a case in point about the cancellation of bail where the bail was granted under Section 167(2) of the Cr.P.C. 13. The Supreme Court has observed in para 22 of the above judgment that an order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the chargesheet or by remand to custody under Section 309(2) of the Cr.P.C. However, it can be cancelled under Section 437(5) or Section 439(2) of the Cr.P.C. It has then referred to the grounds for cancellation of bail which are basically relating to the abuse of the liberty granted to the Accused by his release on bail and has then observed that when the Accused is granted bail under proviso to Section 167(2) of the Cr.P.C. the prosecution can seek cancellation of his bail on the ground that he has committed a non-bailable offence and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1990 is premature since no bail is granted as yet to the Applicant under the proviso to Sec. 167(2) and as such he is also not released on bail. Criminal Application No. 1712 of 1990 is thus liable to be dismissed on this short ground. 16. In the view I have taken, Criminal Application No. 1614 of 1990 deserves to be allowed and the Applicant/Accused is entitled to interim bail under the proviso to Section 167(2) of the Cr. P.C. pending the decision of the Division Bench on a reference made to it in Criminal Application No. 1702 of 1989 with Criminal Application No. 2105 of 1989 by Deshpande J. on the question of applicability of Section 167(2) of the Cr. P.C. to the persons accused of offences under the N.D.P.S. Act. 17. In the result, the Criminal Application No. 1712 of 1990 is dismissed as premature. Criminal Application No. 1614 of 1990 is allowed. Interim bail is granted to the Applicant/Accused pending the decision of the Division Bench on a reference made to it in Crl. Application No. 1702 of 1989 with Cr. Application No. 2105 of 1989 by Deshpande J. on the question of applicability of Section 167(2) of the Cr. P.C, Bail is granted to him in the sum of Rs. 25,000/- wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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