JUDGMENT : ASHIM KUMAR BANERJEE, J. Short question involved herein, is as to whether the learned Magistrate could withhold release of the accused even after granting of bail. The facts reveal, petitioner/accused was charged with an offence of Section 20(b) (1) of Narcotic Drugs and Psychotropic Substances Act (NDPS Act). He was in custody for about sixty days. Neither the prosecution submitted charge sheet nor he was released on bail. After the statutory period was over petitioner applied for bail on February 25, 2011. The learned Additional Sessions Judge, 6th Court Barasat acting as Special Judge under NDPS Act passed an order observing that the accused was in custody for more than sixty days. Since no charge sheet was filed by the prosecution the petitioner should be released on bail bond furnishing P.R bond of rupees thirty thousand with one local surety with like amount on condition that he would not commit any offence while on bail or tamper with the prosecution case. February 26 and February 27 were holidays. On February 28, 2011 the prosecution submitted charge sheet without any Chemical Examination Report. Accused was produced from custody when the learned Judge directed his production on April 21, 2011. On the same day at 3.15 p.m. the accused submitted P.R bond of rupees thirty thousand in terms of the earlier order dated February 25, 2011. The learned Judge refused to release him on bail by recording that since charge sheet had been filed the matter would be heard as to whether the bail bond would be accepted or not. On March 1, 2011 the matter was heard at length on the issue of release. The petitioner contended before the learned Judge that once he was enlarged on bail the Court could not withhold his release particularly when he complied with the formalities by furnishing of P.R bond as directed by the learned Judge. The learned Judge however recorded that before the P.R bond was submitted the charge sheet had been filed without Chemical Examinations Report. The learned Judge considered the Apex Court decision in the case of 2001 Criminal Law Journal Page-1832 (Supreme Court) (Uday Mohanlal Acharya –Vs- State of Maharashtra). The learned Judge considered Section 167(2) of the Criminal Procedure Code and ultimately held that bail bond could not be accepted since charge sheet had been submitted prior to submission of bail bond. The learned Judge considered the Apex Court decision in the case of 2001 Criminal Law Journal Page-1832 (Supreme Court) (Uday Mohanlal Acharya –Vs- State of Maharashtra). The learned Judge considered Section 167(2) of the Criminal Procedure Code and ultimately held that bail bond could not be accepted since charge sheet had been submitted prior to submission of bail bond. The learned Judge rejected the contention of the petitioner that the charge sheet without a Chemical Analysis Report was nonest in the eye of law. The learned Judge observed, Ganja (cannabis) being “a natural drug” and not a manufactured drug visual examination was sufficient. Being aggrieved by the judgment and order of the learned Special Judge the petitioner filed the instant application which was heard by me on the above mentioned dates. Mrs. Rupna Bhattacharya learned counsel appearing for the petitioner contended that the once the accused was enlarged on bail and no time was fixed for furnishing a bail bond the Court below was due bound to accept the same as and when submitted. By not accepting the bond the learned Judge was not entitled to withhold release of the accused. She also contended that under the Narcotic Control Bureau Guidelines Chemical Analysis was a must while charging accused under NDPS Act. Hence, submission of charge sheet without having Chemical Analysis Report was nonest in the eye of law and the learned Judge was not entitled to accept the same. She also contended that once bail was granted, unless it was cancelled the accused was entitled to be released and the Court was not entitled to withhold his release. To support her contention, she relied on the following decisions. i) All India Reporter 1987 Supreme Court Page 149 (Raghubir Singh and Others –Vs-State of Bihar). ii) All India Reporter 1993 Supreme Court Page-1456 (Gaunter Edwin Kircher-Vs- State of Goa) iii) 1994 Criminal Law Journal Page-1 (Supreme Court) (Vaisala-Vs- State of Kerala) iv) 1995 Criminal Law Journal Page-1758 (Pilli Dilli Dora -Vs- State of Orissa) v) 1995 Criminal Law Journal Page-1762 (Balbir Singh -Vs- State of Orissa) vi) 1996 Criminal Law Journal Page-1902 (Nirmal Chandra Sahoo-Vs- State of Orissa) vii) 2002 Calcutta Criminal Law Reporter (Supreme Court) page-597 (Khet Singh –Vs- Union of India) viii)2010 Criminal Law Journal Page-3815 (Madras High Court (Periyasamy –Vs- State by the Inspector of Police). Appearing for the prosecution, learned Public Prosecutor Mr. Appearing for the prosecution, learned Public Prosecutor Mr. Animesh Goswami contended that in view of the provision of Section 167(2) the right of the accused to be released after the statutory period stood extinguished as soon as charge sheet was submitted. The learned Public Prosecutor fairly conceded to the extent that it would have been proper for the learned Judge to cancel the bail. He however contended that once the charge sheet had been submitted the accused was not entitled to be released as a matter of right that too, being faced with a charge of committing offence under NDPS Act. He relied on the Apex Court decision in the case of Uday Mohanlal Acharya (Supra) and a single bench decision of the Jharkhand High Court reported in 2007 Criminal Law Journal Page-2851 (Gyan Chandra Agrawal-Vs-Central Bureau of Investigation). Section 37 of the N.D.P.S. Act clearly bars power of the learned Magistrate to grant bail in case an accused is charged for the offence committed under Section 19, 24, 27-A and/or prohibited items involving commercial quantity unless the pre-conditions stated in Sub-section (1) is fulfilled. Section 167(2) of the Criminal Procedure Code empowers the learned Magistrate to release an accused on bail if the prosecution fails to submit charge sheet within the statutory period prescribed therein. In the case of Periyasamy (Supra), the learned single Judge of the Madras High Court observed that unless and until the bail was cancelled the order made under Section 167 (2) of the Criminal Procedure Code granting bail to an accused would hold good. The learned Judge also observed that the accused was entitled to produce surety and execute bond any time before the case was finally disposed of. Even at the stage of trial he was entitled to produce surety and execute bond to avail the benefit of the order granting bail. In the case of Raghubir Singh (Supra), the Apex Court observed that once the accused was released on bail under Section 167(2) such order could not be defeated by filing charge sheet. In the said case the accused along with others got bail as per proviso to Section 167(2) of the Criminal Procedure Code as prosecution failed to issue charge sheet within the statutory period. The learned Magistrate however imposed a stringent condition for which the accused could not produce surety at an early date. In the said case the accused along with others got bail as per proviso to Section 167(2) of the Criminal Procedure Code as prosecution failed to issue charge sheet within the statutory period. The learned Magistrate however imposed a stringent condition for which the accused could not produce surety at an early date. They ultimately submitted surety who later on backed out. Further application was made for furnishing another surety. Such prayer was rejected as the said surety could not properly identify the accused. The second surety again prayed for reconsideration. The prosecution submitted a delayed charge sheet. The learned Magistrate framed the charges and committed the case for trial. Prayer for being released on bail was repeatedly rejected. Writ petition was filed alleging violation of Fundamental Right guaranteed under Article 21 of the Constitution on various grounds including the ground that the High Court and the Special Judge was wrong in not permitting the accused to offer fresh surety or cash security and were wrong in holding that order directing their release under Section 167 (2) had come to an end by passage of time. In this backdrop the Apex Court observed as stated before. In the decision in the case of Gaunter Edwin Kircher (Supra), the Apex Court considered a case where on a regular trial the accused was convicted. On perusal of the said decision, it appears that the Apex Court considered the quantity of the seized article and reduced the sentence having found it of “small quantity” within the meaning of N.D.P.S. Act. In the case of Valsala (Supra), the Apex Court, on consideration of the facts involved therein, expressed doubt as to whether the seized article was sent for Chemical Examination. In the case of Pilli Dilli Dora (Supra), the learned Single Judge of the Orissa High Court observed that merely because the officer on duty examined the contents of Ganja by burning and smelling would not be sufficient, Chemical Examination of the seized article was mandatory. I am unable to find out any relevance of the proposition of law to decide the case in hand. The substance was sent for Chemical Examination. The report is yet to arrive. At the time of trial the prosecution must prove that the seized article squarely comes within the prohibited items under the N.D.P.S. Act and such proof would be done by recognized Chemical Examination only. The substance was sent for Chemical Examination. The report is yet to arrive. At the time of trial the prosecution must prove that the seized article squarely comes within the prohibited items under the N.D.P.S. Act and such proof would be done by recognized Chemical Examination only. As observed hereinbefore, Ganja is a natural produce and is covered by N.D.P.S. Act as prohibited item. Hence, the prima facie charge is apparent and the prosecution is entitled to issue charge sheet. Significant to note, charge is yet to be framed in the case in hand. In the case of Uday Mohanlal Acharya (Supra), a majority decision of the Apex Court, sitting on a Three Judge Bench, observed that when an application for bail was filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period the Magistrate must dispose it of forthwith after being satisfied that the accused was in custody for the statutory period. In the instant case, charge sheet was submitted within the statutory period. Charge sheet was based on prima facie case made out by the prosecution. This decision, in my view, would be of no assistance to the accused. In the case of Khet Singh (Supra), the Apex Court observed that the standing instruction issued by Narcotic Control Bureau although not having any statutory force, should be followed as a guideline during investigation. Significant to note, in the said case the appellant was found to be in possession of Opium. The Apex Court refused to interfere. In the case of Gyan Chandra Agrawal (Supra), the learned single Judge of the Chattishgarh High Court upon considering the earlier precedents held that right to be released under Section 167(2) of the Criminal Procedure Code stood extinguished in case of non-submission of the bail bond. In the said case, the learned Magistrate passed an order under Section 167(2) for the accused being released on bail, the accused, for the reason best known to them, did not furnish bail bond for about nine months. By that time investigation was conducted and charge sheet was filed. In this backdrop the learned single Judge held that the Magistrate as well as the Session Court rightly rejected the prayer of the petitioner for being released on compulsive bail. By that time investigation was conducted and charge sheet was filed. In this backdrop the learned single Judge held that the Magistrate as well as the Session Court rightly rejected the prayer of the petitioner for being released on compulsive bail. In the instant case the bail was granted on February 25, 2011. The petitioner approached the court for furnishing of the bond at 3.15 p.m on February 28, 2011. By that time the charge sheet was submitted in presence of the accused who was produced from custody. I fully agree with Mr. Bhattacharya when she contended that once the bail was granted the same was valid until it was recalled and/or cancelled. Section 167(2) empowers the Court to grant bail in case of non submission of the charge sheet. Once the charge sheet had been submitted before the accused was released on bail upon completion of the formalities the right to get release stood extinguished as observed by the learned Judge in the case of Gyan Chandra Agrawal (Supra). In the case of Uday Mohanlal Acharya (Supra) the Apex Court observed that on expiry of the period specified in paragraph (a) of proviso (2) Sub- Section 167 if the accused files an applications for bail and offers to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. In the instant case the accused was enlarged on bail and was asked to furnish bail bond. Before he could submit bail bond charge sheet was submitted. The Apex Court observed, “the right of an accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said Section”. Before he could submit bail bond charge sheet was submitted. The Apex Court observed, “the right of an accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said Section”. This view of the Apex Court was fortified by the constitution bench decision in the case of Sanjoy Dutta reported in 1995 Criminal Law Journal Page-477 wherein the Apex Court observed, “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 CrPC ceases to apply”. Relying on the said proposition of law I am of the view that certainly right accrued on account non-filing charge sheet within the statutory period, in view of non-filing of the bail bond as per direction of the learned Magistrate such right stood extinguished once the charge sheet was submitted in the mean time. Lot was said on the Chemical Analysis Report. The prosecution is free to choose its mode as to how they would prove their case. Under the NDPS Act the Chemical Analysis Report is a must. However stage did not come. The learned Judge was prima facie satisfied, on the material available on record that an offence was committed as charged. Ganja is a natural produce and not a chemical substance which would need immediate examination even to form a prima facie opinion to identify the same. Filing of charge sheet without a Chemical Analysis Report could not thus be said to be fatal to prosecution. It would certainly be fatal if the Chemical Analysis Report does not come at all even at the stage of trial. The case is at the initial stage. Prosecution is well within its right to proceed with the case awaiting Chemical Analysis Report. The application fails and is hereby dismissed.