- (1.) D. K. Trivedi, J. The present ap plication has been moved by the Union of India through the Narcotics Commis sioner Lucknow, for cancellation of bail granted to opposite party Mohammad Shamim by the learned Sessions Judge, Barabanki, on 7-10-1993.
(2.) THE main thrust of the learned Counsel for the applicant Shri I. B. Singh is that the learned Sessions Judge granted bail to Mohammad Shamim in utter dis regard to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act and, therefore, the order of" bail is, on the face of it, illegal. According to the case of the prosecution, on receipt of some information the house of Hafiz Shah was searched and in the presence of his son Mohammad Shamim opposite party, 330 gram Heroin was found. A bail application on behalf of opposite party was moved before the learned Sessions Judge and the learned Sessions Judge granted bail to the opposite party mainly on the ground that admittedly in the house in question other persons were also residing and at the said stage it was not clear as to from whose possession the Heroin was recovered. It has also been mentioned by the learned Sessions Judge that all the three public witnesses before whom the recovery was made have filed affidavits to the effect that no heroin was recovered from the house of the opposite, party. Before dealing with the provisions of the Narcotic Drugs and Psychotropic Substances Act it is neces sary to point out that the Narcotic Drugs and Psychotropic Substances Act was enacted with the object of curbing illicit drug trafficking as well as illegal trafficking of Narcotics. For this purpose several acts were enacted but with the passage of time and with the developments in the field of illicit trafficking, at the National as well as International level, several short-comings came to be noticed and, therefore, it was found necessary to enact the present law in order to meet the challenge of illegal traf ficking of Narcotics as well as to check the well organised gangs of smugglers. In fact, after the Convention regarding suppres sion of illicit drug trafficking held in 1988 in Vienna, certain decisions were taken and in compliance of the said Internation al decisions Section 32-A and Section 37 etc. have been added in the Narcotic Drugs and Psychotropic Substances Act. By ad ding Section 37, the Legislature made it obligatory on the Court to consider the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act before granting bail under the N. D. P. S. Act. It is not disputed and now settled law that under Narcotic Drugs and Psychotropic Substances Act power of granting bail is subject to the conditions and limitations pointed out under Section 37 of the N. D. P. S. Act which runs as under: "37. 'offences to be cognizable and non-bailable.- (1 ). Notwithstanding anything con tained in the Code of Criminal Procedure. 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (1) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on. bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other Saw for the time being in force on granting of bail. " 4, The above-mentioned provisions themselves show that the Courts at the time of hearing of the Bail Application under the N. D. P. S. Act must satisfy itself (i) that the Public Prosecutor has been given a proper opportunity to oppose the bail application, and (ii) when the Public Prosecutor opposes the bail ap plication then the Court shall further satisfy itself that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any other offence while on bail. Sub-section (2) of Section 37 clearly shows that the limitations on granting of bail specified in sub-clause (b) are in addition to the limitation under the Criminal Procedure Code. The above-mentioned provisions of N. D. P. S. Act themselves show that the limitations im posed for granting bail under N. D. P. S. Act are in addition to the limitations imposed under the Code of Criminal Procedure meaning thereby that if the Court, in ordinary manner, is satisfied that a case for bail is made out but thereafter he has to satisfy further in accordance with the provisions of Section 37 N. D. P. S. Act as to whether there are reasonable grounds for believing that he is not guilty and further he is not likely commit any offence while on bail. 5. The Hon'ble Supreme Court in the case of Narcotic Control Bureau v. Kishan Lai, 1991 (28) ACC 162, took a view that Section 37 of the N. D. P. S. Act clearly provides that no person can be released on bail under the N. D. P. S. Act unless and until the provisions of Section 37 N. D. P. S. have been complied with. Some of the observations made in the said case and relevant for the decision of this case are quoted herein below: "section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Pro cedure, 1973 no person accused of an offence prescribed therein shall be released on bail un less the conditions contained therein were satis fied. The N. D. P. S. Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. That being the underlying object and particularly when the provisions of Section 37 of N. D. P. S. Act are in negative terms limiting the scope of the ap plicability of the provisions of Cr. PC. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 Cr. PC. are not subject to the limitation men tioned under Section 37 N. D. P. S. Act. The non-obstante clause with which the. section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439 Cr. PC. and Section 37 of the N. D. P. S. Act, Section 37 prevails. " "the Rule commences with a non-obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules. It imposes fetters on the exercise of the power of granting bail in certain kinds of case. " 6. In another case Union of India v. Thami Sharasi, 1995 (32) ACC 503 (SC), the Hon'ble Supreme Court of India laid down that power to release on bail under Section 437 Cr. P. C. are in the nature of restrictions but under Section 37 N. D. P. S. Act the same is condition precedent for the exercise of that power. The Hon'ble Supreme Court further held as under: "in other words, under Section 437 of the Code the person is not to be released on bail" if there appear reasonable grounds for believing that he has been guilty of an offence. . . . . "while according to Section 37 of the N. D. P. S. Act, the accused shall not be released on bail unless" the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. . . . . . "the requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than the require ment of reasonable grounds for the belief that he is not guilty of the offence under Section 37 of the N. D. P. S. Act. Under Section 437 Cr. P. C, the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is guilty while under Section 37 of the Act, the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the N. D. P. S. Act it is the accused who has to show that there are reasonable grounds for believing that he is not guilty. The limitation on the power to release on bail in Section 437 Cr. P. C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N. D. P. S. Act is in the nature of a 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 Section 437 Cr. PC. , it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail, but under Section 37 N. D. P. S. Act it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the em bargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the N. D. P. S. Act more stringent. " 7. The above mentioned facts them selves show that for compliance of Section 37 it is necessary for the accused to show that there are grounds for the belief that he is not guilty and he will not indulge in these activities while on bail, and this is the distinction which makes Section 37 of the N. D. P. S. Act more stringent. 8. Similarly in the case of State of Punjab v. Dharmindar Kumar alias Kaka, 1996 (1) EFR 483. Hon'ble Supreme Court granted Special Leave Petition against the order of granting bail under the N. D. P. S. Act and cancelled the same be cause the bail order was passed in breach of Section 37 of the N. D. P. S. Act. Para 2 of the order of the case State of Punjab (supra) is quoted below: "2. obviously, the trial Court has passed the order granting bail to the respondent ac cused in breach of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In fact, the order granting bail states that it cannot be said at this stage as to whether the accused is guilty of the offence or not. In the circumstances, the order of the trial Court granting bail, was prima facie illegal. Unfor tunately, the High Court while confirming the bail, also failed to notice the provisions of Sec tion 37 of the said Act. In the circumstances, we set aside the orders of the High Court as well as of the trial Court and direct the issue of non-bailable warrant against the accused. The ap peal is allowed, accordingly. " 9. In view of the facts mentioned above, it is evident that nobody can be released on bail under the Narcotic Drugs and Psychotropic Substances Act unless and until all the conditions and limitations imposed under Section 37 of the N. D. P. S. Act are satisfied. As pointed out above in the instant case the learned Sessions Judge granted bail on the ground that the public witnesses have filed affidavits and it is not clear as to whether the house from where the Heroin was recovered is in ex clusive possession of the applicant alone or other persons also. It may be pointed out here that it is not disputed that the house belongs to Hafiz Shah father of the present applicant and father and sons live in the saw house. It is also not disputed that there are other departmental wit nesses also regarding recovery made in this case. From a perusal of the order dated 7-10-1993 passed by the learned Ses sions Judge, Barabanki it is apparently clear that he has not considered the provisions of Section 37 of the N. D. P. S. Act as enumerated above. There is noth ing on record to show that there was any material before the learned Sessions Judge to show that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any other offence while on bail. Here also notices have been issued to the opposite party and in compliance of the said notice Shri S. M. Waseem and Shri V. K, Awasthi, Advocate filed power on behalf of opposite party but no one is present today nor any affidavit was filed by the accused to controvert these facts. In these circumstances it is apparently clear that the order of bail granted under N. D. P. S. Act by the learned Sessions Judge, on the face of it, is illegal and, therefore, the same is liable to be set aside. I accordingly set aside the order 7-10-1993 and cancel the bail and direct the Chief Judicial Magistrate, Barabanki to issue non-bailable warrants against the opposite party and after arrest he may be sent to Jail in accordance with law. How ever, it is further clarified that after the arrest if the accused moves application before the learned Sessions Judge, then the same be disposed of by the learned Sessions Judge in accordance with law, as pointed out above. Petition allowed. .;