IMAM Vs. CENTRAL BUREAU OF INVESTIGATION NEW DELHI

JUDGEMENT

(1.) Imam and Megh Raj have been charged under Section 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter called the NDPS Act), 1985. They were arrested "in 31.8.91. Allegation of the prosecution is that these two persons were sitting on the Railway platform of Old Delhi Railway Station. They were sitting on two parcels booked through railway and one parcel was lying abandoned. These two petitioners were surrounded by the police and were confronted to show the contents of these three parcels. On being confronted the petitioners admitted that these parcels contained 'Charas'. On weighing it was found that three parcels contained 94.50-Kg. of 'Charas' and since then the petitioners are in jail.

(2.) Petitioners have come up before this Court challenging their detention on the ground that no challan/charge sheet has been filed by the prosecution till date. The period of 90 days from the date of arrest has already expired, therefore, under Section 167(2) of the Code of Criminal Procedure, the petitioners are entitled to be released on bail. Proviso to Sub Section (2) of Section 167 provides as under:-

(3.) Mr. Grover. counsel for the petitioners, contended that the provisions of Sub- Section (2) of Section 167, Cr. P.C., are mandatory in nature. The petitioners become automatically entitled to be released on bail when the prosecution chooses not to file the charge sheet within 90 days. He, therefore, contended that he is not asking bail on merit, for which he has to justify his action or to prove the conditions stipulated under Section 37 of the N.D.P.S. Act. Petitioners are entitled to be released on bail because of the default of the prosecution in not presenting the charge sheet within the period stipulated under the Act. He has placed reliance on the observation made by the Supreme Court in the case of Rajnikant Jivanlal Patel & Anr. V. Intelligence Officer, Narcotic Control Bureau, New Delhi, reported in AIR 1990 Supreme Court, page 71. That was also a case under the NDPS Act and their Lordships observed that: