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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.