J. P. DESAI, J. ( 1 ) THE petitioner Surajmal Kanaiyalal Soni was arrested on 7-3-1988 and the prosecution case against him is that he was found in possession of about 10 K. G. of opium at that time, which was seized under a Panchnama. The investigating officer, after completing the investigation, submitted a report to the Court of the Judicial Magistrate, First Class on 31-5-1988 under S. 173 (2) of the Cr. P. C. , 1973. Samples from the opium were sent to the Forensic Science Laboratory for analysis, but the report from the said Laboratory was not received up to 31-5-1988 and, therefore, the report was submitted to the Court under Sub-Sec. (2) of S. 173 without forwarding the report of the Forensic Science Laboratory. This was done because 90 days were to expire about two days alter 31-5-1988. The petitioner then moved for bail before the Court to Sessions at Vadodara. The said Misc. Criminal Application No. 320 of 1988 was heard by the learned Addl. Sessions Judge, Varodara who rejected the said application. It was contended before the learned Addl. Sessions Judge and it is also contended before us by the learned advocate for the petitioner that as the report was submitted to the Court without the report from the Forensic Science Laboratory, it was not a report (charge-sheet) as contemplated by Sub-Sec. (2) of S. 173 and, therefore, it cannot be said that report under Sub-Sec. (2), of S. 173 of the Code was submitted to the Court of the Judicial Magistrate within 90 days from the dale of arrest and, therefore, the petitioner is entitled to be released on bail as of right in view of Sub-Sec. (2) of S. 167 of the Code of Criminal Procedure, 1973. A request for releasing on bail was also made on merits before the learned Addl. Sessions Judge. The learned Addl. Sessions Judge, by a speaking order dated 13-6-1988 rejected the application for bail. The learned Addl. Sessions Judge, after referring to the submissions made before him, observed in his order that ordinarily an accused is entitled to get the benefit of Sub-Sec. (2) of S. 167, Cr. P. C. , but in the present case, there was an allegation that the petitioner was found in possession of 10 Kgs. The learned Addl. Sessions Judge, after referring to the submissions made before him, observed in his order that ordinarily an accused is entitled to get the benefit of Sub-Sec. (2) of S. 167, Cr. P. C. , but in the present case, there was an allegation that the petitioner was found in possession of 10 Kgs. of opium and, therefore, it was not a lit ease in which the benefit should be given to him. He also observed that even without the report of the Analyser, anyone with experience may be able to say whether it was opium or not. He also observed that the papers of investigation disclosed that the substance which was found from the possession of the petitioner was opium and, therefore, even though the report of the Chemical analyser was not received, the petitioner was not entitled to the benefit of Sub-Sec. (2) of S. 167, I. P. C. The learned Addl. Sessions Judge, dismissed the application on 13-6-1988. The petitioner has, therefore, filed this Misc. Criminal Application for bail agitating mainly the ground that as the report of the Forensic Science Laboratory was not received and as copy thereof was not submitted to the learned Magistrate along with the papers of investigation, the report submitted to the Judicial Magistrate cannot be said to be a report as contemplated by Sub-Sec. (2) of S. 173 and that having not been done within 90 days from the date of arrest, the accused is entitled to be released on bail as of right under Sub-Sec. (2) of S. 167. The matter was first placed before a learned single Judge of this court who directed that the matter be referred to a Division Bench and that is how the matter has come up before us. ( 2 ) IN the present case, we proceed on the assumption that S. 167 of the C. P. C. 1973 applies to investigation with regard to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 without going into the question whether that Section applies or not. ( 2 ) IN the present case, we proceed on the assumption that S. 167 of the C. P. C. 1973 applies to investigation with regard to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 without going into the question whether that Section applies or not. If that Section applies, then one thing is certain that an accused cannot be remanded to custody for more than 90 days under S. 167 of the C. P. C. Before going to the discussion of this aspect, we would like to mention here that the Police Officer submitted report in the prescribed form which is styled as charge-sheet. The Police Officer submitted this as a charge-sheet and the learned Judicial Magistrate also accepted the same as such on 31-5-1988 and directed that the case may be taken on the register and summons may be issued to the accused. This shows that the learned Judicial Magistrate accepted the report of the Police Officer as a charge-sheet and took cognizance of the offences mentioned therein and issued process. The act of the learned Judicial Magistrate issuing process has not been challenged by filing any application for quashing the proceedings before this Court. In this application for bail, it is not permissible for us to go behind the action of the learned Judicial Magistrate in taking cognizance of the offences mentioned in the charge-sheet, then the Police Officer submitted the report as a charge-sheet as contemplated by Sub-Sec. (2) of S. 173 and the learned Judicial Magistrate also accepted the same as such, if we go into this question in an application for bail, then we will be going behind the order of the learned Magistrate whereby he took cognizance and ordered summons to be issued. That is not permissible in an application for bail. If the learned Judicial Magistrate had not taken cognizance of the offences and had not treated the charge-sheet as a report under Sub-Sec. (2) of S. 173 of the Code, then different considerations would arise because in that case it can be said that the learned Judicial Magistrate did not treat the same as a report under Sub-Sec. (2) of S. 173. But here the position is quite different, as stated above. But here the position is quite different, as stated above. Apart from this, the record and proceedings which have been received by us show that the learned Judicial Magistrate has already passed an order committing the accused to the Court of Session and the case is registered before the Court of Session at Vadodara as Sessions Case No. 86 of 1988. It appears that the committal order has been passed by the learned Judicial Magistrate on 21-6-1988. The learned Sessions Judge has forwarded to us copy of the report of the Forensic Science Laboratory which appears to have been received by the Police Officer on 27-6-1988. The said report shows that the percentage of morphine in the three pieces sent to the Forensic Science Laboratory was 1. 06%, S. 7% and 2. 3% respectively. This percentage exceeds the percentage of 0. 2% which is the minimum necessary for bringing the substance within the definition of opium as defined by the Narcotic Act as well as by the Prohibition Act. When the charge-sheet was accepted by the learned Judicial Magistrate as reported u/s 173 (2) Cr. P. Code and when the learned Judicial Magistrate took cognizance and then committed the case to the Court of Session and when the case is now pending before the Court of Sessions, it will not be permissible for us to go into the question whether the report which was submitted by the police to the learned Judicial Magistrate on 31-5-1988 was a report as contemplated by Sub-Sec. (2) of S. 173 of the Code. Therefore, we do not propose to go into the question in this application for bail, whether the report submitted by the Police Officer on 31-5-1988 was a report as contemplated by Sub-Sec. (2) of S. 173 of the Code. We will proceed on the assumption that the report submitted to the learned Judicial Magistrate by the Police Officer, which was accepted as such was a report as contemplated by Sub-Sec. (2) of S. 173 of the Code. We do not express any opinion on the question whether this report submitted to the learned Judicial Magistrate without a copy of the report of the Forensic-Science Laboratory can be said to be a report as contemplated by Sub-Sec. (2) of S. 173 or not. We do not express any opinion on the question whether this report submitted to the learned Judicial Magistrate without a copy of the report of the Forensic-Science Laboratory can be said to be a report as contemplated by Sub-Sec. (2) of S. 173 or not. ( 3 ) THE above discussion will show that so far as this particular case is concerned, the petitioner cannot be allowed to contend before this Court in this application for bail that what was submitted on 31-5-1988 to the Court of the learned Judicial Magistrate by the investigating Officer was not a report as contemplated by Sub-Sec. (2) of S. 173 of the Code. Once we proceed on the assumption that such report was submitted to the learned Judicial Magistrate and the learned Judicial Magistrate took cognizance of the offences mentioned in the charge-sheet and directed process to be issued on 31-5-1988, further detention of the accused in judicial custody from time to time after 31-5-1988 will be governed by S. 309 and not S. 167 of the Cr. P. C. What Sub-Sec. (2) of S. 167 of the Code prohibits is not to remand the accused to custody beyond the period of 90 days. Once the report is submitted under Sub-Sec. (2) of S. 173 and the offence is registered and cognizance is taken by the learned Magistrate, the provisions of Sub-Sec. (2) of S. 167 cannot be invoked. In view of this, the application for bail on the ground that the petitioner is entitled to a enlarged on bail in view of the provisions of Sub-Sec. (2) of S. 167 of the Code is bound to fail. ( 4 ) THERE is a decision of this Court reported in Vihabhai Ramdas Patel v. Hemtuji Shivaji Dabhi, 1984 (2) 25 Guj LR 883, wherein it is held that a charge-sheet submitted to the Court without report of the Chemical Analyser is a report as contemplated by Sub-Sec. (2) of S. 173 of the Code. We do not propose to go into the discussion of this question in the present application because as we observed a little earlier, it is not permissible for us to go into this question. ( 5 ) MR. S. D. Patel, learned advocate for the petitioner invited our attention to a decision of the Andhra Pradesh High Court reported in Bandi Kotayya v. State, AIR 1966 Andh Pra 377. ( 5 ) MR. S. D. Patel, learned advocate for the petitioner invited our attention to a decision of the Andhra Pradesh High Court reported in Bandi Kotayya v. State, AIR 1966 Andh Pra 377. In that case, it clearly appears that the Police Officer submitted a preliminary charge-sheet stating therein that the investigation was not complete and he will be submitting further charge-sheet. The learned Magistrate also did not take cognizance of the offences on the said report. The investigating Officer had made the following endorsement on the charge sheet which was styled as preliminary charge-sheet :- "investigation is not yet completed. Final charge-sheet with complete list of P. Ws. will be submitted after completing the investigation. " the learned Magistrate also made endorsements on the docket of the case -file adjourning the inquiry from time to time, in order to enable the police to complete their investigation and file a final charge-sheet. This view of the learned Magistrate was challenged by filing a petition before the High Court which was ultimately dismissed by the High Court. The High Court approved the action of the learned Magistrate in the light of the facie which are stated above. In the present case, the position is quite different because neither the police submitted this as a preliminary charge-sheet or any report other than a report under Sub-Sec. (2) of S. 173 of the Code nor the learned Judicial Magistrate also treated this as any report other than a report under Sub-Sec. (2) of S. 173 of the Code. In view of this, the decision of the Andhra Pradesh High Court cited by Mr. Patel cannot be pressed into service in the present case. ( 6 ) MR. Patel also drew our attention to the judgement of a Division Bench of this Court, reported in Sairabibi v. State of Gujarat, 1986 Guj LH 973. We have carefully gone through this decision of the Division Bench of this Court and we fail to understand how this decision of this Court can at all be pressed into service in the present case. In the case which came up before the Division Bench, it was an admitted position that no report under Sub-Sec. (2) of S. 173 was submitted to the Magistrate before the expiry of the prescribed period. Mr. Patel drew our attention to para 11 of the aforesaid judgement of the Division Bench. In the case which came up before the Division Bench, it was an admitted position that no report under Sub-Sec. (2) of S. 173 was submitted to the Magistrate before the expiry of the prescribed period. Mr. Patel drew our attention to para 11 of the aforesaid judgement of the Division Bench. We fail to understand how the proposition laid down in para 11 can be of any assistance in the present case when, according to the prosecution, report under Sub-Sec. (2) of S. 173 was already submitted to the Court within 90 days from the date of arrest of the petitioner and when the learned Judicial Magistrate has accepted the same as such, as stated by us a little earlier. This was not a case in which application for bail was made and the application was directed to stand over so as to enable the Police Officer to submit charge-sheet during the pendency of the bail application. This decision of the Division Bench of this Court is also, therefore, of no assistance in the present case. ( 7 ) MR. Patel also drew our attention to a decision of the Supreme Court reported in Satya Narain Musadi v. State of Bihar, AIR 1980 SC 506 . The question before the Supreme Court was quite different. It appears that S. 11 of the Essential Commodities Act, 1955 provided that a Court can take cognizance of any offence under the said Act only on a report submitted to the Court by a public servant. In the case before the Supreme Court a Police Officer, after investigation, submitted a charge-sheet to the Court and the question was whether that can be said to be a report under S. 11 of the Essential Commodities Act. The Supreme Court held that the investigating officer was a public servant and, therefore, the charge-sheet submitted by him is to be treated as a report by a public servant as contemplated by S. 11 of the said Act. In the view that we are inclined to take in this application that we cannot go behind the question whether the report submitted in the present case was a report under Sub-Sec. (2) of S. 173, this decision of the Supreme Court is also of no assistance in the present case. Apart from this, it does not throw any light on the question which is agitated in this application. Apart from this, it does not throw any light on the question which is agitated in this application. ( 8 ) THE observations made by a Division Bench of this Court in the case of Adesing Bavabhai v. The State of Gujarat, (1967) 8 Guj LR 350 are also beside the point because the question raised in that matter was about the powers of the Magistrate. The Division Bench of this Court has taken the view that the police is bound to submit a report to the Magistrate one way or the other and the final word rests with the Magistrate and not with the police. In the present case, the Police Officer-submitted the report purporting to be a report under Sub-Sec. (2) of S. 173 of the Code and the learned Judicial Magistrate accepted the same as such, as observed by us a little earlier. In view of this, this decision is also of no assistance in the present case. ( 9 ) IN view of the above discussion, this application is required to be dismissed as we do not find any merit in the contentions raised by Mr. Patel. ( 10 ) SO far as merits are concerned, the applicant is alleged to have been found in possession of about 10 Kgs. of opium, the percentage of opium being more than 0. 2% in the same and, therefore, the applicant does not deserve to be released on bail on merits. The application, therefore, is required to be dismissed and is hereby dismissed. Rule is ordered to be discharged. ( 11 ) THE R. and P. which is received from the Sessions Court, Vadodara to be sent back to the said Court immediately. ( 12 ) BEFORE parting with this judgement, we are very much surprised that the learned Addl. Sessions Judge has observed in his order that though ordinarily a person will be entitled to the benefit of S. 167 (2) of the Code when the charge sheet is not complete, the applicant was not entitled to the said benefit looking to the fact that he was alleged to have been found in possession of about 10 Kgs. of opium. Whether a person is entitled to be released on bail in view of the provisions of Section 167 (2) of the Cr. of opium. Whether a person is entitled to be released on bail in view of the provisions of Section 167 (2) of the Cr. P. C. does not depend upon the question whether there is a prima facie case against the accused and whether the offence is a serious nature. One has only to look to the question whether report under S. 173 (2) is submitted to the Court within the prescribed period or not. If it is not submitted within the prescribed period, then the provisions of S. 167 (2) of the Cr. P. C. come into play and we cannot look to the merits of the case for refusing bail to such an accused. Such accused is entitled to the benefit of S. 167 (2) as of right as soon as it is established that report under S. 173 (2) of the Code is not submitted to the Court of the Magistrate within the prescribed period. Application dismissed. .