ATMA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an application u/s 439 Cr. P.C. flied by an applicant, who is an accused of the offence u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the N.D.P.S. Act). The facts in brief are that one, Ammi Lal lodged an F.I.R. on 15.4.1995 that he had received information that bus of Chandra Travels is about to proceed to Chandigarh. Some passengers of the bus are carrying with them poppy husk. The bus was stopped and checked and only three passengers were found in the bus namely, Sarv Shri Jasveer Singh, Tarsem Singh and Atma Ram, the present petitioner. On search, 12.300 Kg., 10.100 kg. and 7 kg. Of poppy husk was recovered from them respectively without any licence. They were arrested and samples were sent for chemical analysis. After investigation, challan was filed on 15.7.1995. No order of bail was passed by the court before filing of the challan.

(2.) It is contended by the counsel for the petitioner that right to bail u/s 167(2) proviso (a) is absolute. If the investigating agency fails to file charge sheet before the expiry of ninety days, the accused in custody should be released on bail. The right so given to the accused cannot be defeated by subsequent filing of challan. It is another matter that prosecution can move the court for cancellation of bail u/s 437(5) or 439(2) of the Criminal Procedure Code as the case may be. Provisions of 5. 167(2) proviso is a such attracted to a case of an accused under the N.D.P.S. Act as that of an accused under the Indian Penal Code. The counsel relied upon Bashir v. Stale of Haryana, Raghubir Singh v. State of Bihar, Aslam Babalal Desai v. State ofMaharashtra, and Union of India v. Thamisharasi.

(3.) On the other hand, it is submitted by the counsel for the State that the indefeasible right fur grant of bail on expiry of period of ninety days for completing the investigation, is a right of the accused, which is enforceable only upto filing of the challan and does not survive for enforcement on the challan being filed in the court against the accused.