UNION OF INDIA versus THAMISHARASI AND ORS.

Citation: [1995] 3 S.C.R. 905 · Decided: 01-05-1995 · Supreme Court of India · Bench: J.S. VERMA · Disposal: Dismissed
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Judgment (excerpt)

' 
UNION OF INDIA 
v. 
THAMISHARASI AND ORS. 
MAY 1, 1995 
[J.S. VERMA AND MRS. SUJATA V. MANOHAR, JJ.) 
Narcotic Drugs and Psychotropic Substances Act, 1985-Section 
37-Bail-Default in filing complaint within period of 90 days-Claim to be 
released on bail-Applicability of proviso to sub-section (2) of Section 167 of 
A 
B 
Code of Criminal Procedure. 
C 
Criminal Procedure Code, 197rSection 167(2), Proviso-Ap-
plicability of-Bail-Commission of offence under Narcotic Drugs and 
Psychotropic Substances Acf:--Default in filing complaint within period of 90 
days-Claiming to be released on bail-Applicability of proviso to sub-sec. D 
(2) of Sec. 167. 
The Narcotics Control Bureau on the basis of au information seized 
a consignment of Oasks. exported from Madras to Israel containing 
Hashish concealed therein. The premises of the accused were searched at 
Madras and their statements recorded by the concerned authorities. These E 
accused were arrested on 27-6-1994. The complaint against the accused was 
not filed within the maximum period of 90 days of the arrest specified in 
the proviso to sub-section (2) of Section 167 Cr.P.C. as the total period for 
which the accused can be remanded to custody during investigation. The 
accused claimed to be released on bail as of right on expiry of the specified F 
period of 90 days and they had been directed to be released on bail on that 
ground alone. The High Court rejected the prayer for cancellation of the 
bail holding that the proviso to sub-section (2) 167 Cr.P.C. can be invoked 
by an accused arrested for commission of an offence under the Narcotic 
Drugs and Psychotropic Substances Act, 1985, in default of not filing the 
complaint within that period. Hence these appeals by sptcial leave. 
G 
It was submitted on behalf of the Union of India that by virtue of the 
special provisions in the N.D.P.S. Act and particularly Sections 36 and 37 
thereof, the application of the proviso to sub-section (2) of Section 167 
Cr.P.C. was excluded in the case of a person accused of any olTepce H 
905 
906 
SUPREME COURT REPORTS 
(1995] 3 S.C.R. 
A 
punishable under the N.D.P.S. Act. 
B 
c 
The respondents contended that the scheme of the N.D.P.S. Act 
supported the applicability of the proviso to sub-section (2) of Section 167 
CrPC instead of indicating its exclusion in such cases. 
The question raised for consideration was whether the proviso to sub 
section (2) of Section 167 of the Code of Criminal Procedure, 1973 can be 
invoked by an accnsed arrested for commission of an offence under the 
N.D.P.S. Act, 1985, to claim release on bail on the expiry of the total period 
specified therein if the complaint is not filed within that period. 
Dismissing these appeals, this Court 
HELD: 1.1. The limitation on granting of bail specified in clause (b) 
of sub-section (1) of Section 37 of the Narcotic Drugs and Psychotropic 
D Substances Act, 1985 come in only when the question of granting bail arises 
on merits. 1ly its very nature the provision is not attracted when the grant 
of bail is automatic on account of the defanlt in filing the complaint within 
the maximnm period of custody permitted dnring investigation by virtue 
of sub-section (2) of Section 167 of the Criminal Procedure Code. The only 
fact material to attract the proviso to sob-section (2) of Section 167 is the 
E . default In filing the complaint within the maximnm period specified there-
in to permit custody during investigation and not the merits of the case 
. which till the filing of the complaint are not before the conrt to determine 
the existence of reasonable grounds for forming the belief about the guilt 
of the accused [914-G, H, 915-A] 
F 
1.2. Sub-section (3) of Section 36-A provides that the special powers 
of the High Court regarding bail under section 439 of the Code of Criminal 
Procedure shall not be affected by anything contained in section 36-A or 
the N.D.PS. Act, Sub- section (2) of Section 167 Cr.P.C. has been expressly 
applied by Section 36-A of the Act and the scheme or the Act Is that 
G provisions of the Code would apply except where there is any inconsistent 
provision in this Act in relation to arrests made under this Act. It is this 
context in which Section 37(1)(B) has to be construed wherein are specified 
the limitations on granting of bail. The corresponding provision in the 
Code of Criminal Procedure is Section 437 and not Section 167 which can 
H be treated to be inconsistent. [915-C,
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