Narcotics Control Bureau Vs ASHOK MITTAL
Narcotics Control Bureau Vs ASHOK MITTAL
Narcotics Control Bureau Vs ASHOK MITTAL
Versus
Counsels:
JUDGMENT
1. This petition under Section 482 Cr.P.C has been preferred by the
petitioner assailing an order dated 28th January 2009 passed by learned
Special Judge, NDPS Act of releasing the accused on bail under Section
167(2) Cr.P.C.
(ii) sixty days, where the investigation relates to any other offence, and,
on the expiry of the said period of ninety days, or sixty days, as the case
may be, the accused person shall be released on bail if he is prepared to
and does furnish bail, and every person released on bail under this sub-
section shall be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this
section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this
behalf by the High Court, shall authorize detention in the custody of the
police.
6. The respondent has relied upon Uday Mohan Lal Acharya v State
of Maharashtra,AIR 2001 SC 1910 which is a judgment by three Judges
Bench of Supreme Court and by a majority of 2::1, the Supreme Court
observed that Sanjay Dutt’s case (supra) has to be understood in the
manner that Magistrate has to dispose of such application made by
accused forthwith if the accused has been in custody without filing of
charge sheet within the specified period and that accused was prepared to
furnish bail bonds. If after filing of application by the accused, the charge
sheet has been filed, still the right of the accused under Section 167(2)
Cr.P.C shall continue. Uday Mohan Lal Acharya’s case (supra) does not
overrule Sanjay Dutt’s case (supra) nor the smaller Bench of Supreme
Court could overrule law laid down by Constitutional Bench. The
judgment given by the Constitutional Bench of Supreme Court (Five
Judges) in Sanjay Dutt’s case (supra) is very clear that this right of being
released on bail without merits is available only after statutory period as
given under Section 167(2) Cr.P.C for extending remand has expired till
the charge sheet is filed by prosecution. It is not the right of accused
which is defined in Section 167(2), it is the authority of the Magistrate to
extend remand which is defined in Section 167(2). The authority of
Magistrate to extend remand of such an accused is up to 180 days in
NDPS cases, in absence of filing of charge sheet, but once the charge
sheet is filed this authority again gets vested in the Magistrate and after
filing of charge sheet, the Magistrate can decide the bail application only
on the basis of merits i.e. facts and circumstances of the case. Uday
Mohan Lal Acharya’s case (supra) is not in consonance of provisions of
Section 167(2) Cr.P.C and its understanding of Sanjay Dutt’s case (supra)
is contrary to provisions of Section 167(2) Cr.P.C.
8. I consider that the trial court did not realize the extent of its powers
under Section 167(2). If the trial court had to pass an order under Section
167(2), it has to pass it on 61st, 81st or 181st day, as the case maybe, on
production of accused as its power of remanding accused to judicial
custody extinguishes, either on an application from the accused or suo
moto and the accused has to be granted bail as if the offence was bailable.
If powers are not exercised on 61st, 81st or 181st day, as the case may be,
and is exercised on a day subsequent to which charge sheet has been filed,
such an exercise of powers under Section 167(2) is illegal since after
filing charge-sheet, power to remand the accused to judicial custody for
unlimited period i.e. till trial is over, starts and the accused can be
released on bail only if he deserves bail on merits and not otherwise. I
find that the order of learned trial court is bad in law and is liable to be set
aside. The petition is therefore allowed. The order of the trial court is
hereby set aside. The accused be taken in custody. The accused shall be at
liberty to make an application before the trial court for grant of regular
bail on merits.
Sd/-
SHIV NARAYAN DHINGRA, J