IMPORTANT POINT
Though Court has power of granting bail pending appeal in a case under NDPS Act inspite of language of Section 32A of the Act, same however should be done only and strictly subject to conditions spelt out in Section 37 of the Act.

JUDGMENT

Santosh Hegde, J.-Leave granted.

2. The respondent herein was convicted by the Special Judge, N.D.P.S. Court, Lucknow, under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) and since he was a previous offender, the court awarded him the enhanced punishment provided under section 31 of the Act and he was sentenced to undergo RI for 15 years with a fine of Rs. 1,50,000; in default to undergo RI for an additional period of 2 years. It is to be noted that the respondent herein was accused No.2 in the said case before the trial court while A-1 being a first offender was sentenced under section 21 of the Act to undergo RI for 10 years with a fine of Rs. 1 lac; in default of payment of fine he was sentenced to undergo RI for an additional period of 1-1/2 years.

3. The High Court while entertaining an appeal against the said judgment and conviction filed by the respondent herein, did not grant the respondent s prayer for bail, consequently the said application for bail was rejected on 9.7.2002. On a second application filed by the respondent for grant of bail, the High Court allowed the said application by the impugned order dated 4.3.2003 solely on the ground that A-1 from whom the contraband was recovered, was released on bail and the contraband in question was not recovered from the respondent. From the impugned judgment we notice that the High Court did not advert to any other aspect of the case nor to the legal restriction imposed by the statute under section 32A of the Act.

4. The Union of India has preferred the above appeal against the said order of the High Court enlarging the respondent on bail.

5. It is relevant to mention herein that against the grant of bail in regard to A-1 who was also enlarged on bail and whose enlargement on bail was made the sole ground for enlarging the present respondent bail, the Union of India has preferred a separate SLP in which notice and non-bailable warrants have been issued by this Court which have remained unexecuted till date. The fact remains that the Union of India has challenged the grant of bail to said accused also.

6. Learned Additional Solicitor General appearing for the Union of India contended that the High Court apart from not considering the mandatory restriction under section 32A of the Act, did not also notice the fact that the respondent was a previous offender and there were at least 4 other similar cases pending against him under the Act. The High Court also did not consider the possibility of the offender again indulging in the dealings of contraband articles in the event of he being released on bail which is also a very relevant factor to be borne in mind while granting bail in cases involving offences under the Act. He further contended that the respondent having suffered a conviction, there is a presumption that the prosecution has established its case against him in that circumstance, it was not proper for the High Court to have enlarged the respondent on bail. Learned counsel also submitted that the High Court failed to take into consideration various judgments of this Court in regard to enlarging the offenders on bail under the Act.

7. Per contra, learned counsel for the respondent contended that the respondent is a victim of conspiracy hatched by the Department of Narcotics and the Police because in the year 1995, he had made a complaint to the Superintendent of Police that some of the Police Officers had illegally detained him and had demanded and collected a sum of Rs. 50,000 for his release. It is because of that complaint made by the respondent, the Police and the officials of the Department of Narcotics are foisting false cases against the respondent. He also contended that in the present case as well as in other cases also no contraband goods have been recovered from the respondent and that the respondent has served nearly 4 years of his sentence, and there is no possibility of the appeal being taken up for final hearing in