JUDGMENT - SIRPURKAR V.S., J.:—This is an application for grant of bail. The accused/applicant is facing a prosecution for an offence under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”).

2. The allegations against the applicant are that he was found in possession of ganja weighing about 2.250 kgs. when he was allegedly travelling by a bus. The Head Constable on duty on a prior information attended this bus which was going from Akola to Pandharkawda and when the accused alighted from that bus, he was caught and on his search being taken by the Head Constable in presence of the panchas, the said ganja was found. On that basis the investigation was carried on and a charge-sheet came to be filed alleging an offence under section 20(b)(i) of the Act. A bail application was filed before the 2nd Additional Sessions Judge, Yavatmal. However, the said application having been rejected by an order dated 8-7-1994, the present bail application is being pressed into service.

3. Shri P.C. Madkholkar, the learned Counsel for the accused/applicant, strongly submits that in fact this accused was entitled to the grant of bail and that in fact there is no prima facie case against the accused. Shri R. H. Akhani, the learned Additional Public Prosecutor for the State raised a preliminary objection and contended that as a matter of fact the offence under section 20(b)(i) of the Act is covered by section 37(1)(b) and, therefore, unless the two conditions as envisaged under section 37(1)(b) of the Act are fulfilled, the bail application of the accused cannot be granted. It will be better to quote the section. Section 37 of the Act is as under :—

“Section 37(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 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.”

It will, therefore, be seen that where the provisions of section 37 apply, the Court is prohibited from releasing the accused on bail unless firstly that the Public Prosecutor has been given an opportunity to oppose the application and secondly, where the Public Prosecutor opposes such 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. Sub-section (2) specifically provides that these fetters under section 37(1)(b ) are in addition to the limitations under the Code of Criminal Procedure, or any other law for the time being in force. It will be seen that in order that the provisions of section 37(1)(b) are attracted, the offence should be such which is punishable for a term of imprisonment of five years or more under the Act. Shri R.H. Akhani contends that since the offence under section 20(b)(i) which the accused is presently facing is such an offence which is punishable for a term of imprisonment for five years, the provisions of section 37(1)(b) of the Act are attracted. He strongly contends, therefore, that unless the Court comes to a positive finding as envisaged under section 37(1)(b)(ii), the bail cannot be granted.

14. Shri P.C. Madkholkar; the learned Counsel for the accused/applicant, contends that in fact there is n

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