SAXENA, J. - (1.) THIS bail application has been referred to the Division Bench as the vires of Section 37 (1) (b) of the Narcotic Drugs & Psychotropic Substances Act,1985 (hereinafter referred to as the Act) has been challenged.
(2.) SUCCINCTLY stated, the relevant facts are that on receiving a telephonic information, the Dy. S. P. , Shahpura District-Bhilwara made a search on the person of Smt. Sosar and it is alleged that from her possession 2. 6 kg. of opium was recovered in four packets concealed inside her petticoat (Ghaghra) and for the possession/ transportation thereof she had no licence. Accordingly she was arrested for the offence punishable under section 8/18 of the Act. The learned Special Judge, N. D. P. S. Act Cases, Bhilwara by his order dated 7. 10. 93 has rejected her bail application. We have heard Shri M. M. Singhvi, the learned counsel for the petitioner and Dr. S. S. Bhandawat, the learned Additional Advocate General for the State at length and carefully perused the relevant record. Shri. M. M. Singhvi has strenuously contended that the provisions of section 37 of the Act can not over-ride the provisions of the proviso to section 437 (1), Cr. P. C, which specfically lays down that the court may direct that the person referred in clause (i) or clause (ii) of the said section be released on bail, if said person is under the age of sixteen years or is a woman or is sick or infirm. According to him the bar contained in section 37 of the Act is in conflict with the provisions of sections 437&439 of the Criminal Procedure Code and that the provisions of section 37 of the Act are also discriminatory and violative of Articles 14&21 of the Constitution of India. More-over the provisions of section 37 of the Act are contrary to the provisions contained in section 36-A (3) of the Act. Therefore, the provisions of section 37 (1) (b) of the Act deserves to be struck down. Dr. S. S. Bhandawat, the learned Additional Advocate General has asserted that the conditions imposed under clause (b) of sub section (1) of section 37 of the Act are in consonance with the requirement prescribed under clauses (i) and (ii) of sub-section (1) of section 437 and sub-section (3) of that section. According to him, the Apex Court in the case of Narcotic Control Bureau vs. Kishanlal & ors. (1) has already held that the scope of High Courts power to grant bail under section 439 Cr. P. C, is limited to the extent provided under section 37 of the Act. According to him the provisions of section 37 are neither discriminatory nor violative of Articles 14 & 21 of the Constitution of India nor contrary to the provisions of 36 A of the Act and, therefore, those are not ultra vires of the Constitution. We have given our most anxious and careful consideration to the rival contentions. To resolve this controversy, it will be fruitful to reproduce sub-sections (1) & (3) of section 437, Section 439 Cr. P. C. and sections 37 & 36a of the Act:- 437 (1) Cr. P. C. :- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court other than a High Court or Court of Session, he may be released on bail, but (i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence; Provided that (he Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of 16 years or is a woman or is a sick or infirm : Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason. 437 (3) Cr. P. C. : When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI,chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence , is released on bail under sub section (1), the Court may impose any condition which the court considers necessary - (a) in order to ensure that such person shall with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice. 439 Cr. P. C. :- SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION REGARDING BAIL ":- (1) A High Court or Court of Session may direct : - (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in the sub- section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified; Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the public prosecutor unless it is , for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Sec. 37 N. D. P. S. Act,1985 : Offences to be cognizable and non-bailable:- (1) Notwithstanding anything contained 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 - (i) the public prosecutor has given an opportunity to oppose the application for such release, and (ii) where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The Limitations on granting bail specified in clause (b) of sub-section (l) are in addition to the limitations under the Code of Criminal Procedure,1973 (Act 2 of 1974), or any other law for the time being in force on granting the bail. Sec. 36a (3) N. D. P. S. Act:- Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (Act 2 of 1974), and the High Court may exercise powers including the power under clause (b) of sub-section (1) of that section as if the reference to "magistrate" in that section included also a reference to a "special Court" constituted under section 36. "
(3.) A bare reading of Section 37 of the Act reveals that it starts with a non-obstante clause stating that notwithstanding any thing contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. This section declares every offence punishable under the Act to be cognizable. The N. D. P. S. Act is a special enactment and it has been 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 under-lying object and more so when the provisions of section 37 of the Act are in negative terms limiting the scope of applicability of the provisions of Cr. P. C. regarding bail, in our considered opinion, it can not be held that the High Court's power to grant bail under section 439 Cr. P. C. are not subject to the limitation mentioned under section 37 of the Act. The non-obstante clause with which the section start should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between ss. 437 &439 & s. 37 of the Act, the provisions of section 37 shall prevail. In Narcotic Control Bureau vs. Kishanlal (cited supra) interpreting the provisions of section 37 of the Act and sections 4 and 439 of the Code of Criminal Procedure, the Apex Court has held that in view of section 4 Cr. P. C. , when there is a special enactment in force relating to the manner of investigation, inquiry or otherwise dealing with such offences, the other powers under the Code of Criminal Procedure should be subjected to such special enactment. It has been further held that in interpreting the scope of such a statute the dominant purpose in construing the statute is to ascertain the intention of the Parliament and that one of the well recognised canons of construction is that the Legislature speaks its mind by use of correct expression and unless there is ambiguity in the language of the provision the court should adopt literal construction if it does not lead the absurdity. Their lordships of the Supreme Court, therefore, has held that scope of High Courts power to grant bail under any of. the provisions of Cr. P. C. should necessarily be subject to the conditions mentioned in Section 37 of the Act, which is a special enactment in view of sction 4 Cr. P. C. Interpreting the provisions of section 36 (3) of the Act, which declare that "nothing contained in S. 36 shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Cr. P. C. and that the High Court may exercise such powers including the powers of the "magistrate" and "special Court" constituted under section 36", their lordships of the Supreme Court have also held in Kishanlal's case (supra) that the powers of the High Court to grant bail under section 439 Cr. P. C. are subject to the limitations contained in the amended section 37 of the Act and that the restrictions placed on the powers of the Court under the said section are also applicable to the High Court in the matter of granting bail. Therefore, the provisions of Section 37 (l) (b) of the Act are not contrary to provisions of section 36a (3) of the Act. ;