RAJNIKANT JIVANLAL PATEL & ANOTHER versus INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU NEW DELHI.

Citation: [1989] 3 S.C.R. 377 · Decided: 26-06-1989 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Dismissed
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Judgment (excerpt)

• 
RAJNIKANT JIVANLAL PATEL & ANOTHER 
v. 
INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU 
NEW DELHI. 
JUNE 26, 1989 
[K. JAGANNATHA SHETTY, J.) 
A 
B 
Criminal 
Procedure 
Code, 
1973: Sections 
167(2) 
pro-
viso (a), 437, 439 and 482-Accused remanded to jail custody-Charge 
sheet filed after ninety days-Magistrate releasing accused on bail-
High Court ordering re-arrest of accused by cancelling bail-Validity of C 
High Court order. 
Narcotics Drugs & Pyschotroic Substance Act, 1985: Sections 
21, 23 and 29-Accused released on bail by Magistrate on ground 
charge-sheet not filed within ninety 
days~High Court . cancell-
ing bail and ordering re-arrest of accused-Validity of High Court D 
order. 
The petitioners were arrested on March 23, 1988 and produced 
before the Chief Metropolitan Magistrate, who remanded them to jail 
custody. During the pendency of petitioner's application for bail, the 
prosecution filed charge-sheet on June 23, 1988 for offences under Sec-
E 
tion 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances 
Act, 1985. Thereafter, on the petitioners' application for bail under 
Section 167(2) Cr.P.C. on the ground that the charge-sheet was filed 
after the expiry of ninety days of their arrest, the Magistrate enlarged 
them on bail. 
On an application, under sec. 439(2) read with Section 482 of the 
Cr.P.C., filed by the prosecution for cancellation of the bail, stating 
that since two of the accused were earlier absconding, the investigation 
in the case could not be completed within the time frame, the High court 
cancelled the bail order. Hence, the special leave applications by the 
F 
petitioners. 
G 
On the question: whether the discretion exercised by the High 
Court was legally sustainable and whether the accused had a special 
right to remain on bail merely because they had been enlarged under 
Proviso (a) to Section 167(2) of the Code, 
377 
H 
378 
SUPREME COURT REPORTS 
[1989) 3 S.C.R. 
A 
Dismissing the Special Leave Petitions, 
HELD: An order for release on bail under proviso (a) to Section 
167(2) of the Code of Civil Procedure may appropriately be termed as 
on order-on-default. Indeed, it is a release on bail on the default of the 
prosecution in tiling charge-sheet within the prescribed period. The 
6 right to bail under the provision is absolute. It is a legislative command 
and not Court's discretion. If the investing agency fails lo tile charge-
sheet before the expiry of 90/60 days, as the case may be, the accused in 
custody should be released on bail. At that stage, merits of the case are 
not to be examined. In fact, the Magistrate has no power to remand a 
person beyond the Stipulatea period of 90/60 days. He must pass an 
C order of bail and communicate the same to the accused to furnish the 
requisite bail bonds. [38IE-GJ 
The accused cannot claim any special right to remain on bail. If 
the investigation reveals that the accused has committed a serious 
offence and charge-sheet is tiled, the bail granted under proviso (a) lo 
D Section 167(2) could be cancelled under Sections 437(5) or 439(2) of the 
Code. [JSIHJ 
In the instant case, the offences alleged are of serious nature and 
the discretion exercised by the High Court does not call for any 
,l__ .. 
interference. [382A) 
· 
Raghubir Singh v. State of Bihar, [1986) 3 SCR 802, referred to. 
CRIMINAL APPELLATE JURISDICTION: Petitions for 
Special Leave to Appeal (Criminal) Nos. 1090-91of1989. 
f 
From the Judgment and Order dated 8.5.1989 of the Delhi High 
Court in Misc. Appln. No. 106/89 & 107 /1989. 
U .R. Lalit, Tushar Shah and B. V. Desai for the Petitioners. 
J.S. Arora and Salish Agarwala for the Respondent. 
0 
The Judgment of the Court was delivered by 
K. JAGANNATHA SHETTY, J. The petitioners were released 
on bail by the Enquiry Magistrate under proviso (a) to Section 167(2) 
of the Code of Criminal Procedure. After filing of the charge-sheet the 
H High Court ordered their re-arrest by cancelling the bail. The order of 
• 
R.J. PATEL v. INTELLIGENCE OFFICER [SHETTY, J.l 
379 
the High Court is now under challenge. 
I do not find any merit in these petitions. But before dismissing, I 
wish, however, to dr~w attention to some aspects of the question 
raised. 
The facts: 
On 23 March, 1988 the petitioners were arrested in Bombay by 
officers of the Narcotic Control Bureau. They were ordered to be 
produced before the competent Magistrate at New Delhi. They were 
accordingly produced before the Addit
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