Holding

Section 37 of the NDPS Act does not preclude the application of the proviso to Section 167(2) CrPC, and the right to bail under that proviso subsists only until the charge‑sheet is filed; it cannot be claimed thereafter.

Summary

Dr. B.S. Panchal was arrested under the Narcotic Drugs and Psychotropic Substances (NDPS) Act on 8 November 1993. Both the City Sessions Judge and the Gujarat High Court denied his bail applications, relying on Section 37 of the NDPS Act and the precedent set in Narcotics Control Bureau v. Kishan Lal. The appellant contended that bail should have been granted because the prosecution failed to file a charge‑sheet within the period prescribed by the proviso to Section 167(2) of the Code of Criminal Procedure (CrPC), and that Section 37 should not apply in that circumstance. The Supreme Court held that Section 37 does not exclude the operation of the proviso to Section 167(2) CrPC even for offences under the NDPS Act, and clarified that the right to bail under that proviso exists only from the time of default until the charge‑sheet is filed; it cannot be invoked after the charge‑sheet is lodged, though a bail granted before filing cannot be withdrawn merely because the charge‑sheet is later filed. Consequently, the appeal was dismissed and the trial was directed to be expedited.

Issues considered

Whether Section 37 of the NDPS Act bars the grant of bail when the prosecution fails to file a charge‑sheet within the period prescribed by the proviso to Section 167(2) CrPC.
Whether the right to bail under the proviso to Section 167(2) CrPC survives after the charge‑sheet has been filed.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2)
Narcotic Drugs and Psychotropic Substances Act, 1985s. 37

Subjects

NDPS ActbailSection 167 CrPCcharge‑sheetSection 37Supreme Courtcriminal procedure

Judgment

DR. BIPIN SHANTILAL PANCHAL A
v.
" STATE OF GUJARAT

JANUARY 8, 1996

[A.M. AHMADI, CJ., B.P. JEEVAN REDDY AND N.P. SINGH, JJ.] B

Narcotics Drugs and Psychotropic Substances Act, 1985:

S.37( 1)(b)-Limitation on granting bail-Held not applicable where
bail is claimed.for under proviso (a) to sub-section (2) of s.167 Cr.P.C.
c
Code of Criminal Procedure, 1973 : S.167(2)--Righi of accused to be
granted bail for failure of prosecution to file challan within stipulated
period-Held, cannot be exercised after challan has been filed.

The appellant was arrested under the Narcotic Drugs & Psychotropic
Substances Act 1985 on 8.11.1993. The Sessions Judge as well as the High D

- ' Court, taking into consideration Section 37 of the Act and the Judgment of
this Court* rejected the appellant's applications for bail. Aggrieved, the
appellant filed the present appeal.

It was contended for the appellant that he was entitled to be released
E
on bail, as the prosecution failed to submit the challan within the period
provided by Proviso (a) to sub-s.(2) of Section 167 of the Code of Criminal
Procedure, 1973, and at that stage Section 37 of the Act would not apply.

Dismissing the appeal, this Court

HELD : 1. Section 37 of the Narcotics Drugs and Psychotropic F
Substances Act, 1985 does not exclude the application of the proviso to sub-
section (2) of Section 167 of the Code of Criminal Procedure even in respect
of persons who are accused of offences under the Act. [195-A]

*Narcotics Control Bureau v. Kishan Lal and Others, [1991] l SCC 705,
G
held inapplicable.
ll, 2. If an accused 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 claim that he had an indefeasible right to exercise
it at any time notwithstanding the fact that in the meantime the charge- H
193
194 SUPREME COURT REPORTS [1996) l S.C.R.
A 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 snch circumstances, he c~nnot
be rearrested on the mere filing of the charge-sheet. [195-G]

Sanjay Dutt v. State through CB.I. Bombay (II), (1994] 5 sec 410 and
Aslam Babalal Desai v. State qf Maharashtra, [1992] 4 sec 272 relied on.
B .(
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 26 of
1996.

From the Judgment and Order dated 19.4.94 of the Gujarat High Court
in Misc. Cr!. Application No. 1587 of 1994.
c
Ms. Meenakshi Arora for the Appellant.

Mrs. H. Wahi for the Respondent.

The Judgment of the Court was delivered by
D
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
-
E 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 rej~cted by the city Sessions Judge on 4.2.1994 in view of the
judgment of tlliS Court in the case of Narcotics Control Bureau v. Kishan Lal
and Others, AIR (1991) SC 558 = [1991] l SCC 705, taking into consideration
F 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
G 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
H applicability of proviso to sub-section (2) of Section 167 of the Code in respect
B.S. PANCHAL (DR.) v. STATE [N.P. SINGH, J.] 195
of an accused under N.D.P.S. Act in the case of Union of flldia v. Thamisharasi A
& Ors., JT ( 1995) 4 SC 253 and it has been held that Section 37 does not
exclude the application of the proviso to sub-section (2) of Section 167 of the
Code, even in respect of persons who are 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
, B
passed under the other provisions of the Code. Whether the accused who was
entitled to be released on bail under proviso to sub-seclion (2) of Section 167
of the Code, not having made an application when such right had accrued, can
exercise that right at a later stage of the proceeding, has been examined by a .
Constitution Bench of this Court in the case of Smijay Dutt v. State through
CB.I. Bombay (II), [1994] 5 SCC 410 and it has been said: C
"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 Hitcndra Vishnu Thakur is a right which ensures to, and is D
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 E
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''.
F

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 Jaw, he cannot contended that he had an indefeasible right to
exercise it at any time notwithstanding the fact that in the meantime the charge- G
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 circun1stances, he cannot be
rearrested on the mere filing of the charge-sheet, as pointed out in Aslam
Baba/al Demi v. State ~f Maharashtra, [1992] 4 SCC 272.

The learned counsel, appearing for the appellant, did not press the appeal H
196 SUPREME COURT REPORTS [1996] l S.C.R.
A 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 l(b)(ii) of Section 37. Accordingly, the appeal ~ails and
it is dismissed. However, we direct that the trial of the appellant be expedited.

R.P. Appeal dismissed.

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