SAXENA, J. - (1.) THIS case comes up before this Bench on a reference made by the learned Single Judge on two points : " (i) Whether in cases under the N. D. P. S. Act, an applicant is entitled to grant of bail on the sole ground that his detention during investigation has exceeded the period of detention envisaged by Sec. 167 (2) of the Code? (ii) Whether the powers of the High Court to grant bail for offenders under the provisions of N. D. P. S. Act stand curtailed by Sec. 37 of the Act, notwithstanding the fact that such powers are preserved by virtue of Sec. 36a (3) of the Act?"
(2.) WE have heard Shri N. K. Garg and Shri Sandeep Mehta appearing for the petitioner and as an intervener as also Shri L. S. Udawat, Addl. Advocate General appearing for the State. In this case, our attention was invited to the decision of their lordships of the Supreme Court rendered in Hitendra Vishnu Thakur and Others vs. State of Maharashtra and Others (1), wherein their lordships held that section 20 (4) of the TADA Act makes section 167 Cr. P. C. applicable in relation to the cases involving the offence punishable under the TADA Act subject to the modification specified therein. It is alleged by Mr. Garg and Mr. Mehta that provisions of Section 20 (4) of the TADA Act and Sec. 36a of the N. D. P. S. Act are identical and it has also been canvassed before us that the provisions of sub-sections (8) & (9) of Sec. 20 of the TADA Act are similar to Section 37 (1) & (2) of the N. D. P. S. Act and when in TADA Act, the provisions of Section 167 Cr. P. C. have been made applicable, they mutatis mutandis apply to the provisions of N. D. P. S. Act and consequently, the reference should be answered in favour of the applicant. Mr. L. S. Udawat, Addl. Advocate General has, however, submitted that the reference has become totally academic in view of the judgment of their lordships of the Supreme Court rendered in Sanjay Dutt vs. The State through C. B. I. , Bombay, (2), wherein their lordships have held that the indfeasible right of the accused to be released on bail in accordance with Sec. 20 (4) (bb) of the TADA read with Section 167 (2) of the Code of Criminal Procedure in default of completion of investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur's case is a right which ensures to and is enforceable by the accused only from the time of default till the filig of the challan and it does not survive or remain enforceable on the challan being filed. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed is governed from the time of filing of the challan only by the provisions relating to the grant of bail application at that stage. Their lordships observed that it does not survive or remain enforceable after the challan is filed. It only remains enforceable till the filing of the challan i. e. it can be availed in the intervening period, when the period prescribed for completion of the investigation has expired and the challan has not been filed. It does not survive thereafter i. e. once the challan is filed, there is no question of its enforcement, since it is extinguished the moment challan is filed, because Section 167 Cr. P. C. ceases to apply. In the instant case the view of the learned Single Judge was that investigation continues till the cognizance is taken by the learned Magistrate and mere filing of the challan does not bring investigation to an end and that is why, he chose to make this reference. Of-course, one of the reasons for makin reference was conflicting decisions rendered by the learned Judges of the Single Benches of this Court, but that controversy stands fully answered by the decision of their lordships rendered in Sanjay Dutt's case which is a Constitution Bench judgement. In this case, application for bail has been filed after the challan was filed and, therefore, the reference has now become academic, because no right vests in the accused to get his bail under section 167 (2) Cr. P. C. on the ground that the challan has not been filed within the prescribed period or the investigation has not come to an end. It is settled position of law as held by the Apex Court that investigation comes to as end as soon as the challan is filed and, therefore, thereafter. Sec. 167 (2) has no application whatsoever. Keeping in view this dictum of their lordships of the Apex Court, we feel that this is not a fit case in which the questions raised in the reference should be answered, because now they have become academic and the grounds on the basis of which the reference has been made, do not exist in view of the authoritative decision of their lordships of the Supreme Court rendered in Sanjay Dutt's case. Accordingly, the reference is returned unanswered for disposal of the petitioner's bail application in accordance with law in view of the authoritative pronouncements of their lordships of the Supreme Court rendered in Hitendra Vishnu Thakur's case and Sanjay Dutta's case. The case be listed before the learned Single Judge on 21. 11. 94. . ;