Dr. Sarojnei Saksena, J.:— The petitioner's counsel contends that on 1.7.1994 the accused-petitioner was arrested for an alleged offence under section 18/61 of the N.D.P.S Act, 1985 (hereinafter referred to as the ‘Act’) on the ground that when his personal search was taken in the presence of D.S.P Ferozepur, he was found in conscious possession of 600 gms. of opium. It is further contended that till today, no challan is presented against the petitioner. Thus under the mandatory provisions of Section 167(2) proviso, Cr.P.C he is entitled to be released on bail. He has placed reliance on Ajit Singh v. State of Punjab, 1994 (2) Recent Criminal Reports 279.
2. The respondent's learned Counsel relying on Narcotics Control Bureau v. Kishan Lal, 1991 (1) Recent Criminal Reports 338 and Ram Dayal… v. Central Narcotic Bureau, Gwalior…., 1993 (2) Criminal Law Journal 1443 (Full Bench) decision of Madhya Pradesh High Court), argued that section 37 of the Act starts with a non-obstanti clause which overrides Section 167(2) proviso, Cr.P.C If the prosecution is opposing the bail and has shown that there is a prima facie case against the accused-petitioner and that he is likely to commit any other offence while on bail, the bail cannot be granted on the ground simpliciter that challan is not filed within 90 days from the date of arrest of the accused-petitioner.
3. No doubt in Ajit Singh's case (supra), Single Bench of this Court has taken a view that if proviso to Section (2) of 167 Cr.P.C is not complied with, charge-sheet is not presented within 90 days of the arrest of the accused, he is entitled to be released on bail. In that case, provisions of section 37 of the Act were not at all be considered. In Kishan Lal's case (supra), the Apex Court has held that in matters of grant of bail to accused, Section 37 of the Act would apply and not Section 439 Cr.P.C
4. It is further held therein that in case of inconsistency between Section 439 Cr.P.C and 37 of the Act, Section 37 would prevail. The Full Bench of the Madhya Pradesh High Court has held in Ram Dayal's case (supra) that even if the charge-sheet is filed after 90 days of the arrest of the accused, he is not entitled to get bail from the High Court as of right under Section 167(2) Cr.P.C as Section 37 of the Act overrides Section 167(2) Cr.P.C
5. In this case, it is not disputed that the mandatory provisions of Act are not followed during investigation. Counsel appearing for the respondent contended that there are reasonable grounds for believing that the petitioner is guilty of the aforesaid offence. He further contended that the accused is likely to commit any other offence while on bail.
6. Thus, it is evident that the provisions of Section 167(2) proviso, Cr.P.C do not override the provisions of Section 37 of the Act. The State has opposed the bail application and it has shown that there is a prima facie case under Section 18 of the Act against the accused-petitioner. Hence the application for grant of bail is hereby rejected.