A.A. Desai, J. - Question as posed in this application pertains to applicability of proviso to sub-Section 2 of Section 167 of the Code of Criminal Procedure (the Code) in the matter of grant of bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act").

2. The applicant was arrested on 1-12-1989 on having found in possession 4.90 Kgs of Ganja. He is, therefore, being prosecuted for the offence punishable under Section 20 of the Act. The prosecution on 6-2-1990 filed a chargesheet i.e. beyond 60 days.

3. Mr. Sirpurkar, the Learned Counsel appearing for the applicant, therefore, asserted that the applicant is entitled, to be released on bail in view of the provisions laid down in proviso (a) to sub-Section (2) of Section 167 of that Code. He placed reliance on the decision delivered by the Supreme Court in case of Rajnikant v. Intelligence Officer, Narcotic Control Bureau1. The applicant-Rajanikant in that case was prosecuted for the offence punishable under the Act. The Supreme Court has observed that a right to bail under these provisions is absolute. The Magistrate has no power to remand a person beyond the stipulated period. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bond. Mr. Sirpurkar advanced a submission that the Supreme Court has explicitly considered the applicability of Section 162(2) proviso (a) to release the accused ort bail for the offence punishable under the Act.

Mr. Sirpurkar also tried to submit that in view of the observation of the Supreme Court, the applicant on completion of the stipulated period under the custody, is not required even to apply for grant of bail. The Magistrate being under Legislative common is left with no choice but to release the applicant on bail. As such, conditions laid down in Section 37 of the Act need no adherence, as they do not prevail over the provisions of Section 167 (2) proviso.

4. Section 37 of the Act as then originally stood reads as thus "Offence to be cognizable – Not with standing anything contained in the Code, every offence punishable under this Act; shall be cognizable. The act then did not contain a specific provision for grant of bail for the offence punishable under the Act Matter was governed by the Code. Section 37 which is now in vogue came to be introduced on Statute book by Act 2 of1989. It has on 6-1-1989 received the assent of the President. It is notified on 9-1-1989 in the Gazette of India. Section 37 now substituted read as thus:

"Offences to be cognizable and non-bailable-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be cognizable;

(a) 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

(j) where the Public Prosecutor oppose the application for such release, and

(k) 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 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. "

Section 37 has thus incorporated its independent scheme for grant of bail for the offences punishable under the Act.

The Supreme Court on 8-5-1989 delivered the judgment in the case cited supra. The Supreme Court has examined the order of the High Court passed in exercise of power under Section 439 (2) of the Code cancelling the bail, which was granted under Section 167 (2) proviso. The Supreme Court referred to the dictum lai