Vidya vs State of Punjab

Dr. Sarojnei Saksena, J.

Relying on Union of India v. Thamisharasi and others, JT 1995(4) SC 253, petitioner''s learned counsel contended that the Sessions Court vide its order Annexure P1 has wrongly declined bail to the petitioner holding that the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) override the provisions of section 167 (2)(a) of the Code of Criminal Procedure. According to him, the Apex Court has held in the above case that the provisions of section 167(2) can be invoked by an accused arrested for the commission of an offence under this Act, if after the expiry of the stipulated period mentioned therein, investigation is not concluded and complaint is not filed. He further contends that in this case provisions of section 50 of the Act and section 100 of the Code of Criminal Procedure are not followed. Hence, the petitioner is entitled to be enlarged on bail.

Learned A.A.G. Punjab contended that after the passing of the order Annexure P1, challan has been presented against the petitioner. So, now under section 167(2) she cannot claim to be enlarged on bail on that default clause. It is also contended that section 50 is not attracted in the facts of the case. Further, under the provisions of Section 37 of the Act, she cannot be enlarged on bail as this is the second offence under the NDPS Act for which she is arrested now.

In this case 4 quintals and 40 Kgs of poppy husk were recovered from behind the house of the petitioner on the basis of her disclosure statement. No personal search was taken. Hence, in my considered view the provisions of section 50 of the Act are not attracted. So far as provisions of Section 100 of the Code of Criminal Procedure are concerned, they are questions of fact, which can be determined, only after evidence is adduced in the case, but even if it is to be held that these provisions were not followed, simply on the ground of their violation, the petitioner is not entitled to be enlarged on bail.

In the aforesaid authority, the Apex Court has decided that section 37 of the Act does not override the provisions of Section 167(2) of the Code of Criminal Procedure. Admittedly, challan has been presented now. The petitioner cannot claim that she be released on bail on default as investigation could be concluded within 90 days of her arrest. As per this judgment of the Supreme Court, after the presentation of the challan, the provisions of section 37 of the Act are attracted. Hence, the petitioner is required to satisfy the Court that there are reasonable grounds for believing that she is not guilty of such offence and that she is not likely to commit any offence while on bail. From the FIR it is evident that earlier also she was hauled up for an offence under the NDPS Act. The petitioner could not satisfy this Court with regard to condition under section 37(1)(b) of the Act. In view of these facts, bail is declined.

JUDGMENT accordingly.