B.D Agarwal, J.:— This application has been filed by the accused who has been arrested in connection with Crl. Trial (Excise) Case No. 1793 of 2009 under section 21(b) of the NDPS Act, 1985 for possessing 6 (six) grams of manufactured drugs. The offence prescribes sentence of rigorous imprisonment which may extend to 10 years and fine upto Rs. 1 lac.
2. The accused was arrested and produced in Court on 19.8.2009 During the course of investigation the accused filed bail application No. 810 of 2009 and the said bail application was decided on 3.11.2009, allowing the accused to be released on bail on furnishing of bond of Rs. 40,000/- with one surety of like amount.
3. Being aggrieved with the surety amount fixed by the learned Judge Court of Aizawl the accused has preferred this application to relax or to reduce the bail amount.
4. I have heard Mr. Vanlalenwawia, learned Counsel for the petitioner and Mr. N. Sailo, learned Public Prosecutor, Mizoram. I have also perused the impugned order. From the impugned order, it appears that the accused has been allowed to be released on bail basically on the ground that since charge-sheet has not been filed within the statutory period, the accused is entitled to be released on bail under section 167 of the Code of Criminal Procedure, 1973 (briefly ‘Cr. PC’)
5. As rioted earlier the accused was arrested on 19.8.2009 and the bail application was granted on 3.11.2009 on default clause of section 167, Cr. P.C In other words, on the date of passing the order the accused had not completed 90 days of judicial custody. Hence, the question arises as to whether in this case the statutory period of 60 days or 90 days would be applicable. For ready reference relevant portions of section 167, Cr. P.C are hereby reproduced:
“167. Procedure when investigation cannot be completed in twenty-four hours.
(1) xxxxxxxxxx
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that.—
(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if the is prepared to and does furnish bail, and every person released on bail under (this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter);
(b) xxxxxxxxx Explanation I and II xxxxxxxxx (2-A) tel (6) xxx xxx xxx”
6. Since the bail application is arising out of an offence under section 21(b) of the NDPS Act, 1985 it is also relevant to quote the aforesaid provision of law to ascertain whether statutory period of 60 days or 90 days would the applicable for detaining an accused till the filing of charge-sheet. section 21(b) of the NDPS Act, 1985 runs as below:
“(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakhs rupees.”
7. The words “imprisonment for a term of not less than ten years” employed in section 167, Cr. P.C (2)(a)(i) authorizing a Magistrate to detain an accused person in custody upto 90 days came for consideration before the Hon'ble Supreme Court in the case of Rajeev Chaudhary v. State (Nct) Of Delhi. . 2001 5 SCC 34. In this case the accused was arrested for an offence under section 386 of the Indian Penal Code, which also prescribes sentence of imprisonment that may extend to 10 years. In other words the sentence prescribed under section 386, IPC is similar to the sentence prescribed under section 21(b) of the NDPS Act. Hence, the principle that would be applicable for the offence of section 386, IPC would also be applicable to section 21(b) of the NDPS Act muiatis mutandis.
8. In the case of Rajeev Choudhary (supra), the Metropolitan Magistrate held that since sentence was not for more than 10 years of imprisonment section 167(2)(a)(ii), Cr. P.C would be applicable. Accordingly the Metropolitan Magistrate accepted the bail prayer on completion of 60 days of judicial custody of the accused. That order was challenged by the State before the Sessions Judge. The learned Sessions Judge overruled the view taken by the Metropolitan Magistrate and held that the offence would attract 90 days of statutory period. After elaborate discussion of the law, the same view was reiterated by the Delhi High Court in Rajeev Chaudhary v. State,2 and rejected the bail prayer of the accused and upheld the order of the Sessions Judge. This order was again challenged by the accused before the Hon'ble Supreme Court. Adverting to the provisions of section 167, Cr. P.C vis-a-vis section 386, IPC the Hon'ble Supreme Court laid down the law in this manner.
“6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorize the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression “not less than” would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it would not be said that minimum sentence would be 10 years or more. Further, in context also if we consider Clause (i) or proviso (a) to section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life and (3) imprisonment for a term of not less than 10 years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under section 386, IPC, imprisonment of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.
7. In the result, the appeal is dismissed.”
9. In this way the Apex Court has held that the offences where sentence of imprisonment can be awarded upto 10 years would mean that the sentence can also be awarded for the maximum period of 10 years and, in such cases, the statutory period of 90 days would be applicable. This view has again been followed by the Hon'ble Supreme Court in the case of Bhupinder Singh v. Jamail Singh. Prior to that also a question came before the Gauhati High Court in the case of Jitendra Prasad Singh v. State of Assam, as to whether an offence under section 63 of the Copyright Act, 1957 would be considered as cognizable and non-bailable offence. In this case also this Court has held that the expression “punishable with imprisonment for a term, which may extend to three years” is distinctly different from the expression “if punishable with imprisonment for less than three years”. In this way, it has been held that under the former expression the imprisonment can extend for a clear period of three years. With these reasoning the offence has been held to be cognizable and non-bailable. The judgment of Rajeev Choudhary (supra), and that of Jitendra Prasad Singh (supra) have been followed by a Division Bench of Gauhati High Court in the case of Hridayananda Sharma v. State of Assam.3
10. In view of the aforesaid authorities, I find no difficulty to hold that the offence under section 21(b) of the NDPS Act and all other similar offences, where the sentence prescribed for a term which may extend to 10 years would be covered by section 167(2)(a)(i) of the Cr. P.C and the Judicial Magistrates and other competent Courts shall be entitled to allow detention of the accused persons for a period of 90 days. To put it differently, the expression “imprisonment for a term which may extend to ten years” as Employed in section 21(b) of the NDPS Act and other similar penal provisions may be read as “imprisonment for a term of ten years or less” and all such sentences would be covered by section 167(2)(a)(i) and not under Clause (ii) of the said provision.
11. For the foregoing reasons, the impugned order dated 3.11.2009 passed by the Special Judge, (NDPS Act) Aizawl is not tenable in law. Consequently the order is hereby set aside. However, learned Special Judge would not be precluded from considering fresh bail application of the accused, either on expiry of 90 days of statutory period or on filing of the charge-sheet/final report by the investigation officer, whichever is earlier. While doing so, the learned Special Judge shall also be at liberty to review the conditions of the bail. With the aforesaid directions and observations the revision application stands dismissed.
12. The Registry is directed to transmit a copy of his order to the Trial Court.
13. Ordered Accordingly.