SECTION 37 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 DOES NOT BAR THE GRANT OF BAIL UNDER SECTION 390 OF THE CODE OF CRIMINAL PROCEDURE.

ASHOK AGARWAL, J.:- This is an application for bail pending the hearing and final disposal of an appeal filed by the State seeking to impugn an order of acquittal passed for offences punishable under Ss. 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. At the trial five accused were prosecuted and by judgment and order passed on the 8th of April, 1993 the learned Additional Sessions Judge, Malegaon acquitted all the accused. Benig aggrieved by the aforesaid order of acquittal, the State has preferred the instant appeal. By an order passed on the 4th of October, 1993 the aforesaid appeal was admitted and action under S. 390 of the Code of Criminal Procedure was ordered. Accordingly, warrants of arrest of the accused were issued and accused No. 5 was taken in custody by the trial Court. The accused No. 5, thereafter, preferred an application for bail. By an order passed on the 17th of December, 1993 the learned Additional Sessions Judge was pleased to reject the application for bail. According to the learned Judge, only accused No. 5 has been arrested after the issue of warrants whereas the other accused are reported absconding. He has further noted that during the pendency of the trial all the accused including accused No. 5 were under-trial prisoners and they were denied bail under the provision of S. 37 of the Act. After the order of acquittal was passed, the State has preferred an appeal. The High Court has admitted the appeal which necessarily means that, according to the High Court, ex-facie, the acquittal is improper. The Court has further proceeded to hold that the provisions of S.390 Criminal Procedure Code do not apply to offences punishable under the Act. S.17 is a special provision in the Act which governs the bail and hence the general provisions of S. 390, Criminal Procedure Code cannot be resorted to. The accused No. 5 has, thereafter preferred the present application for bail.

2. Shri Kotwal, the learned Advocate, who has appeared in support of the application for bail, has contended that the provisions of S. 390 of the Code would apply in the instant case and S. 37 of the Act will not oust the application of S.390 of the Code of Criminal Procedure. In support of his contention, he has relied on a decision of a Division Bench of this Court in the case of "Kuldeepsingh Keshersingh Pabla v. State of Maharashtra", (1993 Mah LJ 1742), wherein this Court has held that S.167(2) of the Code would apply to prosecution under the Act, despite the provisions contained in S. 37 of the Act and the non-obstante clause in S. 37 will not bar the mandate contained in S. 167(2) of the Code. The Bench has made a reference to S. 36A(1), 36C and 33 of the Act and has found that whenever certain provisions of the Criminal Procedure Code are excluded from the operation of the Act, the same has been specifically mentioned in the said Sections. It has further found that the mandate of S.167 is clear. It has further observed as follows :

"The mandate of S. 167(2) is clear, that the accused shall be released on bail if he is prepared and does furnish bail on expiry of the period of 60 days or 90 days as the case may be upon failure of the prosecution agency to file the necessary charge-street. In our view, coming back to the authority of the Supreme Court in Rajnikant Patel v. Intelligence Officer, NCB, New Delhi cited supra and Aslam Baba v. State of Maharashtra, AIR 1993 SC 1, cited supra, there can be no two opinions that S.167(2) is a legislative mandate and such a mandate cannot be whittled down merely because the provisions relating to grant or refuse bail has been made more stringent under NDPS Act.

"There is another way of looking at it. Grant of bails under the provisions of Code of Criminal Procedure falls in Chapter XXXIII. The provisions in this Chapter are general provisions as to how bail matters are to be decided in bailable and non-bailable offences and also bestows special powers in the High Cou