Full Judgment Text
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PETITIONER:
DR. BIPIN SHANTILAL PANCHAL
Vs.
RESPONDENT:
STATE OF GUJRAT
DATE OF JUDGMENT: 08/01/1996
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
AHMADI A.M. (CJ)
JEEVAN REDDY, B.P. (J)
CITATION:
1996 SCC (1) 718 JT 1996 (1) 111
1996 SCALE (1)142
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
N.P. SINGH, J.
Leave granted.
This appeal has been filed against an order dated
19.4.1994 passed by the High Court, rejecting the prayer of
the bail, made on behalf of the appellant, who is an accused
for offences under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the
N.D.P.S. Act).
It appears that the appellant was arrested on
8.11.1993. A petition for bail on merit was rejected by the
City Sessions Judge on 4.2.1994 in view of the judgment of
this Court in the case of Narcotics Control Bureau vs.
Kishan Lal and Others. AIR 1991 SC 558 = (1991) 1 SCC 705,
taking into consideration Section 37 of the said Act. The
High Court also rejected the prayer for bail, made on behalf
of the appellant, in view of Section 37 of the Act, after
making reference to the judgment of this Court in the case
of Narcotics Control Bureau v. Kishan Lal and Others
(supra).
The learned counsel, appearing for the appellant, urged
that the statutory period prescribed by proviso (a) to sub-
section (2) of Section 167 of Code of Criminal Procedure
during which the appellant could have been kept in custody,
pending investigation, had expired, because of which the
appellant should have been released on bail and at that
stage there was no question of application of Section 37 of
the Act. Recently, this Court has considered the question of
applicability of proviso to sub-section (2) of Section 167
of the Code in respect of an accused under N.D.P.S. Act in
the case of Union of India vs. Thamisharasi & Ors., JT 1995
(4) SC 253 and it has been held that Section 37 does not
exclude tha application of the proviso to sub-section (2) of
Section 167 of the Code, even in respect of persons who are
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accused for offences under N.D.P.S. Act. But it is an
admitted position that the charge-sheet has been filed on
23.5.1994 and now the appellant is in custody on the basis
of orders of remand passed under the other provisions of the
Code. Whether the accused who was entitled to be released on
bail under proviso to sub-section (2) of Section 167 of the
Code, not having made an application when such right had
accrued, can exercise that right at a later of the
proceeding, has been examined by a Constitution Bench of
this Court in the case of Sanjay Dutt v. State through
C.B.I. Bombay (II), (1994) 5 SCC 410 and it has been said :
"The "indefeasible right" of the accused
to be released on bail in accordance
with Section 20 (4) (bb) of the TADA Act
read with Section 167(2) of the Code of
Criminal Procedure in default of
completion of the investigation and
filing of the challan within the time
allowed, as held in Hitendra Vishnu
Thakur is a right which enures to, and
is enforceable by the accused only from
the time of default till the filing of
the challan and it does not survive or
remain enforceable on the challan being
filed. If the accused applies for bail
under this provision on expiry of the
period of 180 days or the extended
period, as the case may be, then he has
to be released on bail forthwith. The
accused so released on bail may be
arrested and committed to custody
according to the provisions of the Code
of Criminal Procedure. 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
applicable at that stage".
Therefore, if an accused person fails to exercise his right
to be released on bail for the failure of the prosecution to
file the charge-sheet within the maximum time allowed by
law, he cannot contend that he had an indefeasible right to
exercise it at any time notwithstanding the fact that in the
meantime the charge-sheet is filed. But on the other hand if
he exercises the right within the time allowed by law and is
released on bail under such circumstances, he cannot be
rearrested on the mere filing of the charge-sheet, as
pointed out in Aslam Babalal Desai vs. State of Maharashtra,
(1992) 4 SCC 272.
The learned counsel, appearing for the appellant, did
not press the appeal on merit, saying that in the facts and
circumstances of the case, the City Sessions Judge, should
have held that there were reasonable grounds for believing
that the appellant was not guilty of any offence under that
Act, as required by sub-section 1(b) (ii) of Section 37.
Accordingly, the appeal fails and it is dismissed. However,
we direct that the trial of the appellant be expediated.