- (1.) S. K. Verma, J. Applicant Ram Janam Singh has applied for bail in the case under Section 27-A/29 NDPS Act on the ground that he was arrested on 6-4-1994 at 7-00 a. m. by the Narcotic Control Bureau officials and till now no complaint has been lodged although ninety days have already passed and therefore, he may be released under Section 167 (2), Cr. P. C.
(2.) SEVERAL other grounds for bail have also been taken but it is unneces sary to discuss those, because this preliminary point is enough to allow this application. It is an admitted position that till now complaint has not been lodged in Varanasi against the applicant. According to prosecution he was arrested on 7-4-1994 at 8-00 p. m. and was remanded to judicial custody by the Magistrate was on 8-4-1994. The prosecution claims that Section 167 (2) Cr. P. C. has no application in view of provisions of Section 37 of NDPS Act. In this respect the decision of the Supreme Court in Narcotic Control Bureau v. Kishan Lal, 1991 (1) EFR 390 (SC): 1991 JIC 275 (SC), has been relied by the prosecution. In reply the learned counsel for the applicant has placed reliance on a decision of the Delhi High Court in Imam v. C. B. I. New Delhi, 1992 (2) EFR 650. It was held in that decision that the Supreme Court was not dealing with the case where the challan is not presented within 90 or 60 days as the case may be in Kishan Lal's case (supra) of course, if the petitioner had asked for the bail on merit, the observation of Supreme Court in the case of Kishan Lal (supra) would have applied on all fours. The learned counsel for the applicant has also placed reliance of a full bench case of Kerala High Court in Berlin Joseph v. State, 1992 (2) EFR 369. The learned Hon'ble Judges remarked while deciding the aforesaid case as follows: "what would be the consequence, if Section 37 of NDPS Act over rides Section 167 of the Code? We pointed out that under Section 167 of the Code a Magistrate has no power to authorise detention of any person beyond a period of 60/90 days. If such an accused person can be released on bail, at the said stage, only on compliace with the stringent conditions contained in Section 37, practically no accused can be released on bail even after the said period of 60/90 days. Unless he is set free, he will continue to remain in detention. But how long? Perhaps the police may take many months (if not years) to finalise the report. The accused will have to languish in custody without a trial like a "pappilone" for considerably long period. "in Rajnikant v. Intelligence Officer, Narcotic Bureau, 1989 JIG 610 (SC): 1990 (1) EFR 221 (SC), Jagannatha Shetty, J. sitting as vacation judge, has held that the right to bail under Section 167 (2) proviso (a) to the Code is absolute and is a legislative command and not the discretion of the Court. Although the accused in the said case was involved in offences under Sections 21, 23 and 29 of the NDPS Act, the said decision was rendered when NDPS Act remained before its amendment by Act 2 of 1989. So, that deci sion is of no help in deciding the question now posed. Nor does the Supreme Court decision in Narcotic Control Bureau v. Krishan Lal, 1991 (1)EFR 390 (SC): 1991 JIC 275 (SC), help us in resolv ing the present question because in that decision the question considered was whether Section 27 would control Section 439 of the Code. That is a differsnt question altogether. "
(3.) THE full bench, ultimately came to the conclusion that Section 167 (2), Cr. P. C. would operate even for offences under the NDPS Act and then Sec tion 27 of the NDPS Act has no application. In other words, Section 27 of the NDPS Act does not override Section 167 (2) of the Code. Hence the legal position set out by Balakrishnan, J. in Appachan v. Excise Circle Inspec tor, (1990) 2 ALT 610 (DB) is correct. I respectfully agree with the view taken in the full bench discussed above and find that the detention beyond 90 days is illegal and, therefore, the applicant is entitled to bail.;