Dr. B. Siva Sankara Rao, J.

1. The prosecution agency represented by the Intelligence Officer, Narcotics Control Bureau, Hyderabad Sub-Zone, who is the petitioner herein, filed this application under Section 437(5) instead under Section 439(2) read with 37 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") to cancel the order in Crl.P. No. 2204/2014 dated 03.03.2014 granting bail in favour of the 5th accused shown as the sole respondent to the present application.

2. Heard the petitioner-prosecution agency and the respondent-accused No. 5 at length and perused the material on record.

3. Now the points for consideration are:

1. Whether there are any Just grounds to recall or cancel the bail order granted to the respondents-5th accused and if so, on what grounds and under which provision?

2. To what result?

POINT Nos. 1 & 2:

4. Before coming to the facts on the scope of the application, the only contention for cancellation of bail is that the learned Judge did not properly advert to the scope of Section 37 of NDPS Act, which prohibits the grant of bail. Thereby it is required to reproduce what the Section 37 speaks herein:

"[37. 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 offences under section 19 or section 24 or section 27Aand also for offences involving commercial quantity shall be released on bail or on his own bond unless

(i) the Public Prosecutor has been 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 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 law for the time being in force, on granting of bail.]"

5. As per Section 37(1)(b), if it is the commercial quantity of the Narcotic drug or psychotropic substance, whatever be the penal provision, leave about irrespective of commercial quantity similar rider is there for those offences punishable under Sections 19, 24 and 27(a). Section 37(1)(b)(ii)speaks 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.

6. The counsel for prosecution placed reliance upon

(i) Babua Vs State of Orissa 2001(2) SCC 566, wherein it has held that, Court should examine whether prosecution statements, if believed would result in conviction if it could not given an answer in negative, bail could not be granted;

(ii) Intelligence officer, Narcotics Control Bureau Vs Shambhu Shankar 2002(2) SCC 562 that bail cannot be granted unless the public prosecutor has been heard and Court is satisfied that the accused is not guilty and not likely to commit any offence while on bail;

(iii) State of M.P. Vs Kajad 2001(7) SCC 672 held that Court's satisfaction under Section 37(1)(b)(ii) about accused being not guilty must be arrived based on the record;

(iv) D. Sarojini Vs State of A.P. 2001 (7) SCC 677, held the same and also in;

(v) Customs, New Delhi Vs Ahmadalieva Nodira.

7. The counsel for the accused, who is the respondent to this application, raised the contention that there are no grounds to cancel the bail and that the bail granted is valid within the scope of Section 37 of the Act supra and placed reliance on the expression of the Apex Court in Union of India v. Rattan Mallik @ Habul 2009 Crl. Law Journal 3043 (SC, wherein it was observed in paras 13 to 16 as follows:

13. It is plain from a bare reading of the non-obstante clause in th