Separate NDPS Recoveries Cannot Be Totalled Against One Accused: Rajasthan High Court Grants Default Bail After 60 Days

The petitioner's counsel stated the prosecution case: on 13.06.2010 a Sub-Inspector checking a hotel found her in a room with a co-accused and recovered 200 grams of brown sugar from her; an FIR under Section 8/21 of the NDPS Act followed (para 2). He said no charge-sheet came within 60 days, so she sought bail under Section 167(2) CrPC. On 25.09.2010 the trial court refused it: 500 grams had been recovered from the co-accused, 700 grams in all from the room, so 180 days applied (para 2). She relied on Akhlak @ Vilasan; the Public Prosecutor said the total counted and the challan had been filed within 180 days (paras 2-3).

Admittedly, only 200 grams of brown sugar, less than commercial quantity, was recovered from the petitioner (para 5). Under Section 36A(4) of the NDPS Act, the 90 days mentioned in Section 167 CrPC are read as 180 days where the drug recovered is of commercial quantity; where it is less, the upper limit of 60 days under Section 167(2) CrPC applies (para 5). Since each accused would have to be sentenced with regard to the specific quantity recovered from his or her own possession, the total recovered from all the accused could not be read against her, and the charge-sheet period was 60 days, not the 180 days the trial court had applied (para 6). Applying the Supreme Court's principle in Uday Mohanlal Acharya v. State of Maharashtra, it held that even if the charge-sheet had been filed after the 60 days, the indefeasible right under Section 167(2) was not frustrated or extinguished, so its benefit had to be given to her (paras 4, 7). Without expressing any opinion on the merits, it granted bail under Section 439 CrPC (para 8). Akhlak @ Vilasan, cited for the petitioner, is not named in these reasons (paras 2, 5-7).