TMI Blog2010 (3) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... to the law laid down by the superior courts- Such practice is liable to be condemned Bail - The learned counsel for the petitioners submitted that the petitioners are entitled to get default bail under the proviso to Section 167(2) of the Code of Criminal Procedure, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the NDPS Act - The petitioners shall be released on bail subject to the condition mentioned in the order - 1337 of 2010 - - - Dated:- 5-3-2010 - K.T. Sankaran, J. REPRESENTED BY : Shri P. Vijaya Bhanu, for the Petitioner. [Order]. This is an application for bail under Section 439 of the Code of Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final report is not filed. It is submitted by the learned counsel for the petitioner that sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with the proviso to Section 167(2) of the Code of Criminal Procedure would entitle the petitioner to get default bail, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned counsel for the petitioner also relied on the decision in Union of India v. Thamisharasi and Others [(1995) 4 SCC 190]; wherein it was held that the limitations on granting of bail specified under Section 37(1) of the Narcotic Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anting bail to A4 has not specifically held the question whether 37(ii) need not be looked into and ignoring 37(ii) bail has to be granted. As per para 5 of the order of Hon ble High Court of Kerala in bail application No. 872/2010 it can be seen that bail is granted taking note of the fact that 180 days is already over. Since application of Sec. 37(ii) is not specifically excluded by the Hon ble High Court of Kerala I am of the view that the spirit of the said order cannot be applied in these applications. 6. The learned Sessions Judge appears to have interpreted the decision of the High Court according to his own imagination. The High Court had relied on the decision of the Supreme Court in Union of India v. Thamisharasi and Others [(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Section 167 CrPC is excluded in the case of a person accused of any offence punishable under the NDPS Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the NDPS Act supports the applicability of the proviso to sub-section (2) of Section 167 CrPC instead of indicating its exclusion in such cases. 8. These contentions were dealt with by the Honourable Supreme Court and it was held thus : 8.......The clear reference to the power of the Magistrate under Section 167 CrPC, particularly sub-section (2) thereof, is an indication that no part of sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Additional Solicitor General contends that these limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 indicate that the applicability of the proviso to sub-section (2) of Section 167 CrPC is excluded in such cases. We are unable to accept this contention. ..... 14. In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 CrPC in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the NDPS Act and the scheme of the Act indicates that the total period of custody of the accused permissible du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays, till the final report is filed or until further orders; (b) The petitioners shall appear before the investigating officer for interrogation as and when required; (c) The petitioners shall surrender their passports, if any, before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within a period of one week. If any of the petitioners does not hold an Indian Passport, an affidavit sworn to by him shall be filed before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within one week; (d) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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