Honble NAOLEKAR, J. - This is an application u/s 439 Cr.P.C. filed by an applicant, who is an accused of the offence u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the N.D.P.S. Act). The facts in brief are that one Ammi Lal lodged an F.I.R. on 15.4.95 that he had received information that bus of. Chandra Travels is about to proceed to Chandigarh. Some passengers of the bus are carrying with them poppy husk. The bus was stopped and checked and only three passengers were found in the bus namely, Sarv Shri Jasveer Singh, Tarsem Singh and Atma Ram, the present petitioner. On search, 12.300 Kg., 10.100 kg. and 7. kg. of poppy husk was recovered from them respectively without any licence. They were arrested and samples were sent for chemical analysis. After investigation, challan was filed on 15.7.95. No order of bail was passed by the court before filing of the challan. (2). It is contended by the counsel for the petitioner that right to bail u/s. 167(2) proviso (a) is absolute. If the investigating agency fails to file charge sheet before the expiry of ninety days, the accused in custody should be released on bail. The right so given to the accused cannot be defeated by subsequent filing of challan. It is another matter that prosecution can move the court for cancellation of bail u/s 437 (5) or 439 (2) of the Criminal Procedure Code as the case may be. Provision of s. 167(2) proviso is as much attracted to a case of an accused under the N.D.P.S. Act as that of an accused under the Indian Penal Code. The counsel relied upon Bahir vs. State of Haryana (1), Raghubir Singh vs. State of Bihar (2), Aslam Babalal Desai vs. State of Maharashtra (3) and Union of India vs. Thamisharasi (4). (3). On the other hand, it is submitted by the counsel for the State that the indefeasible right for grant of bail on expiry of period of ninety days for completing the investigation, is a right of the accused, which is enforceable only upto filing of the challan and does not survive for enforcement on the challan being filed in the court against the accused. (4). To better understand the controversy, the relevant provision of s. 167 is reproduced. "167. Procedure when investigation cannot be completed in twenty-four hours. (1)....................... (4). To better understand the controversy, the relevant provision of s. 167 is reproduced. "167. Procedure when investigation cannot be completed in twenty-four hours. (1)....................... (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise 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 authorise 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 authorise 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 he 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; " ................................. The legislative intent and anxiety in providing the maximum period for investigation and for filing of the challan is with the purpose that investigating agency with the sense of urgency shall complete investigation promptly and within the statutory time frame. The right to bail u/s 167 (2) proviso (a) is on failure of prosecuting agency in filing a challan within ninety days. It is not a bail on merits but release on bail on the default of the prosecution. (5). In Union of India vs. Thamisharasi (supra), it has been held by the Supreme Court while considering the arguments that the provision of s. 167 (2) proviso does not apply to N.D.P.S. Act by virtue of s. 37 of the N.D.P.S. Act. It is not a bail on merits but release on bail on the default of the prosecution. (5). In Union of India vs. Thamisharasi (supra), it has been held by the Supreme Court while considering the arguments that the provision of s. 167 (2) proviso does not apply to N.D.P.S. Act by virtue of s. 37 of the N.D.P.S. Act. It is laid down as under: — "Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provision in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. In our. opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 Cr.P.C in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the NDPS Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr.P.C. which is expressly applied. The absence of any provision inconsistent there with in this Act is significant." After the decision of the Supreme Court, there is no manner of doubt left that s. 167(2) proviso of the Criminal Procedure Code, 1973, is applicable to the case arising out of N.D.P.S. Act. (6). In Bashir vs. State of Haryana (supra), the Supreme Court has held as under: — "The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437 (1) or (2) and these provisions are applicable to a person who has been released under section 167(2). Under section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a charge-sheet had been filed and that before the appellants were directed to be released under section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the court should proceed on the basis that he has been deemed to have been released under section 437(1) and (2)". (7). In Raghubir Singh vs. State of Bihar (supra), it has been held by the Supreme Court as under:— "An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). (7). In Raghubir Singh vs. State of Bihar (supra), it has been held by the Supreme Court as under:— "An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439 (2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed." (8). I Aslam Babalal Desai vs. State of Maharashtra (supra), the Apex Court by majority judgment, while considering the question, whether bail once granted under sub-section(2) of s. 167 Cr.P.C. for failure to complete the investigation within the prescribed time can be cancelled on the mere ground that subsequently charge sheet has been filed disclosing commission of serious nature of crime punishable with death or life imprisonment or for a term extending ten years, has held as under : "The provisions of the Code, in particular Ss. 57 and 167, manifest the legislative anxiety that once a persons liberty has been interfered with by the police arresting him without a Courts order or a warrant, the investigation must be carried out with utmost urgency arid completed within the maximum period allowed by the proviso (a) to S. 167 (2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under S. 167(2) would be an order under S. 437(1) or (2) or 439 (1) of the Code. Since S. 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to S. 437(5) or 439 (2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under S. 437 (1) or (2) or 439 (1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to S. 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by Ss. 57 and 167 (2) of the Code, We are, therefore, of the view that once an accused is released on bail under S. 167(2) he cannot be taken back in custody merely on the filing of a charge sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikants case ( AIR 1990 SC 71 ), to the extent it is inconsistent herewith does not, with respect, state the law correctly." (9). The ratio of Rajnikants case ( AIR 1990 SC 71 ), to the extent it is inconsistent herewith does not, with respect, state the law correctly." (9). In the aforementioned decision of the Supreme Court, principles enunciated are : (i) The provision of s. 437 (1) (2) (5), s. 439 (2) are applicable to an accused, who has been released on bail u/s 167(2) Cr.P.C. (ii) Provision of s. 162(2) (a) Cr.P.C. applies to an accused under N.D.P.S. Act. (iii) Once an order of release is made or accused is released u/s 167(2) (a) proviso Cr.P.C, his bail can only be cancelled in the parameters of cancellation of bail u/s 437(5) or 439 (2) Cr.P.C. as the case may be. (iv) Once an accused has been released on bail applying proviso to s .167(2) Cr.P.C, his bail cannot be cancelled merely on the ground, that later on challan has been filed or on lapse of time in execution of bail order. (10). In none of these cases, the Supreme Court was called upon to decide a question where there is no order of release of an accused on bail or accused had not been released on bail, under the proviso (a) to s. 167(2) of the Criminal Procedure Code and the challan was thereafter presented by the prosecution in court. The Supreme Court had an occasion to consider such an eventuality in a case reported in Sanjay Dutta vs. The State, through C.B.I., Bombay (5) although arising out of the proceedings under Terrorist and Disruptive Activities (Prevention) Act, 1987, the Constitution Bench has considered the scope and ambit of s. 167 of the Criminal Procedure Code and has held "The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167, Cr.P.C. ceases to apply." (11). In view of the decision of the Constitution Bench, the accused-applicant cannot enforce his right now under proviso (2) of s. 167 of the Code although challan was not filed by the investigating agency within ninety days of his arrest. As there is no order of grant of bail nor the accused-applicant was released on bail, provisions of s. 437(5) or 439(2) are not attracted. The applicant is not, now entitled to be released on bail for default of prosecution agency. (12). It is then argued by the counsel for the applicant that the accused is aged 70 years and that deserves sympathetic consideration by this Court and that, because Forensic Science Laboratory report is not produced till date by the prosecution there is nothing on record to assume that the material seized from the accused applicant is poppy husk. (13). Section 437 or 439 Cr.P.C. impose restriction on the power to release the accused on bail if reasonable grounds exist for the belief that accused is guilty whereas limitation on this power in s. 37 of N.D.P.S. Act is in the nature of condition precedent for the exercise of that power, so that, the accused shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that he is not guilty. Under s. 437 Cr.P.C, it is for the prosecution to show reasonable ground showing involvement of the accused in the commission of the crime to attract the restriction on the power to grant bail whereas u/s 37 of N.D.P.S. Act, it is the accused who has to show the existence of the ground for the belief that he is not guilty of the offence he is charged. In the first case, burden to prove that accused is prima facie guilty is on the prosecution but in the latter case, burden is on the accused to satisfy the court that he is not guilty. In the first case, burden to prove that accused is prima facie guilty is on the prosecution but in the latter case, burden is on the accused to satisfy the court that he is not guilty. Moreover, the court has to be satisfied that accused is not likely to commit any offence while on bail when Public Prosecutor opposed the bail. The provision of s. 37 is more stringent than s. 437 Cr.P.C. (14). Keeping in view the limitation imposed on the power to release on bail in "s. 37 of N.D.P.S. Act, can it be said that the applicant is entitled to bail on account of his age. To me, when the accused prima facie is engaged in clandestine business of narcotic drugs at this age, his age cannot be a ground to release him on bail. It is for the accused to satisfy the court that the material seized from his is not a narcotic drug and psychotropic substance within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985, or that his case falls within the purview of s. 27 of N.D.P.S. Act, to avoid application of s. 37 of the Act. The accused shall not be entitled for release on bail simply on the ground that Forensic Science Laboratory report was not produced by the prosecution agencies, because court has to be satisfied by the accused that there are reasonable grounds for believing that he is not guilty. Very long delay in production of Forensic Science Laboratory report by the prosecution agency may raise a rebutable presumption that on chemical examination, the material sent for examination does not contain narcotic drugs and psychotropic substance but that depends upon circumstances and facts of each case. (15). Having considered all the facts and circumstances of the case and for the reasons stated above, the accused-applicants application for bail is dismissed.