TMI Blog1990 (11) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. 2. The Applicant/Accused was arrested on 10-3-89. However, the chargesheet was not filed against him within a period of 90 days, i.e. until 9-6-1989. He, therefore, filed an application for bail on 19-7-1990 u/S. 167(2) of the Code of Criminal Procedure, (For short 'Cr.P.C.'). In the meanwhile, the charge-sheet was filed on 26-6-1989. The learned Spl. Judge i.e. the Additional Sessions Judge, Greater Bombay, rejected the bail application on the ground that the question of applicability of S. 167(2) of the Cr.P.C. to the person accused of an offence the N.D.P.S. Act was referred to the Division Bench by Deshpande J. in Criminal Appln. No. 1702 of 1989 with Criminal Appln. No. 2105 of 1989, since he disagreed with the view taken by Suresh J. in a previous decision holding that S. 167(2) of the Cr.P.C. is not applicable to the persons accused of offences under the N.D.P.S. Act He, therefore, held that it would not be proper for him to grant bail u/S. 161(2) of the Cr.P.C. Feeling aggrieved, the Applicant/Accused has preferred the instant Criminal Application No. 1614 of 1990 in this Court claiming interim bail u/S. 167(2) of the Cr.P.C. pending the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long time since 10-3-1989, the learned Counsel appearing for him has urged before me that the view favourable to the Accused should be followed and he should be granted interim bail u/S. 167(2) of the Cr.P.C. pending decision by the Division Bench in regard to the applicability of the said section to the offences under the N.D.P.S. Act. In my view, the above submission made on behalf of the Applicant/Accused deserves consideration. It has, therefore, to be seen whether the provisions of S. 167(2) of the Cr.P.C. are attracted in the instant case. 6. There is not much dispute on facts. The learned Counsel appearing for the Department does not dispute that the chargesheet was not filed within 90 days, and, therefore, as per the provisions of S. 167(2) of the Cr.P.C. if it was applicable, the Applicant/Accused would be entitled to get bail. However, what he contends is that although technically bail can be granted to the Applicant/Accused, it should be immediately cancelled looking to the fact that the offence with which he is charged is a serious offence under the N.D.P.S. Act and that the Accused/Applicant is likely to flee from India. The learned counsel appearing for the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no right in the Respondent/Department to apply for his arrest and committal to custody which, in other words, is described as cancellation of bail. In support of his submission, the learned counsel appearing for the Applicant/Accused has relied upon the judgment of Rajasthan High Court in the case of Dewan v. State and also the judgment of the Gujarat High Court in the case of Parshottam Soma v. State (1972) 13 Guj LR 585. On the other hand, it is submitted on behalf of the Respondent/Department that this Court can cancel the bail in exercise of its inherent power u/S. 482 of the Cr.P.C. even before the Accused/Applicant is released on bail. In support, the learned counsel appearing for the Department has placed reliance upon the judgment of this Court in the case of Department of Central Excise v. Rajesh Tulsidar (1988) 3 Bom CR 466. 10. The judgments of the Rajasthan and Gujarat High Courts upon which reliance is placed by the learned Counsel for the Applicant/Accused, no doubt, support him. Moreover, the language used in sub-sec. (2) of S. 439 of the Cr.P.C. is very clear and explicit. When it uses the expression any person who has been released on bail . it would mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in its various judgments. The case of Raghubirsingh v. State of Bihar 1987CriLJ157 is a case in point about the cancellation of bail where the bail was granted u/S. 167(2) of the Cr.P.C. 13. The Supreme Court has observed in para 22 of the above judgment that an order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody u/S. 309(2) of the Cr.P.C. However, it can be cancelled u/S. 437(5) or S. 439(2) of the Cr.P.C. It has then referred to the grounds for cancellation of bail which are basically relating to the abuse of the liberty granted to the Accused by his release on bail and has then observed that when the Accused is granted bail under the proviso to S. 167(2) of the Cr.P.C. the prosecution can seek cancellation of his bail on the ground that he has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody for which the Court would expect very strong grounds. It is clear that cancellation of bail depends upon the conduct of the Accused after his release on bail. The application for cancellation of bail of the Accused before his release o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/Accused is entitled to interim bail under the proviso to S. 167(2) of the Cr.P.C. pending the decision of the Division Bench on a reference made to it in Criminal Application No. 1702 of 1989 with Criminal Application No. 2105 of 1989 by Deshpande J. on the question of applicability of S. 167(2) of the Cr.P.C. to the persons accused of offences under the N.D.P.S. Act. 17. In the result, the Criminal Application No. 1712 of 1990 is dismissed as premature. Criminal Application No. 1614 of 1990 is allowed. Interim bail is granted to the Applicant/Accused pending the decision of the Division Bench on a reference made to it in Cri. Application No. 1702 of 1989 with Cr. Application No. 2105 of 1989 by Deshpande. J. on the question of applicability of S. 167(2) of the Cr.P.C. Bail is granted to him in the sum of ₹ 25,000/- with two sureties in the like amount on the condition that the passport of the Applicant/Accused shall be detained by the Department. The Applicant/Accused shall attend the Office of the Assistant Collector of Customs (Prosecution Cell) New Custom House, Bombay, twice a week on Monday and Thursday, between 9 a.m. to 11 a.m. He shall give address of his reside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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