IMPORTANT POINT
Court considering bail will have to take into account restrictions on the powers to grant bail in spite of the procedure having been followed during search & seizure being illegal.

JUDGMENT

S.K. Verma, J. - All these bail applications relate to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and are being disposed of by this common order because similar questions of law have been raised in these cases.

2. The main submission made on behalf of the learned counsel for the applicants in these cases is that in view of the decision of this court in Sewa Ram v. State of U.P.1 and also in view of decision of this Court in criminal Misc. Bail Application No. 14479 of 1992 Dadan Singh v. State of U.P.2 the legal position is as follows:

a) The provisions of sections 42 and 50 of the NDPS Act are mandatory and violation of any of these provisions will raise a presumption of prejudice.

b) The prosecution may show with reference to the appropriate evidence at the state of bail and in the trial that compliance of these provisions was, in fact, made.

c) The prosecution could also place before the Court reliable evidence to show that irrespective of the violation of these provisions, recovery was made from the accused and no prejudice has, in fact, been caused.

d) In regard to section 50 of the NDPS Act, the police Officer is bound to inform the accused that he could have his search made before a Magistrate or any other Gazetted Officer referred to in this section.

e) Where provisions of section 42 or 50 of the NDPS Act have been violated, arid it is not shown that no prejudice was, in fact, caused, mere alleged recovery of large quantity may not be considered to be sufficient to deny bail.

It has further been argued that it was also upheld in Dadan Singh case - on the basis of Dasrath Lal v. State. of U.P.3 that where the mandatory Provisions ,are complied with, then only the provisions of section 37 of the NDPS Act will come into play.

3. From the prosecution side reliance has been placed on the decision-of the Supreme Court in Narcotic Control Bureau v. Kisanlal and others4 and At has been argued that section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained there in were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and. regulation of operations relating to Narcotic Drug and Psychotropic Substances. That being the underlying object and particularly when the provisions of section 37 are in negative terms, limiting the scope of applicability of the provisions of Cr. P.C. regarding bail, it cannot be held that the High Courts powers to grant bail under section 439 Cr. P.C. are not subject to the limitation mentioned under section 37 of the NDPS Act. Then on obstante clause with which the section starts should be given its flue meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between section 439 Cr. P.C. and section 37 of NDPS Act, section 37 prevails.

4. With due respect to the learned Judges of, this Court deciding Dadan Singh's case (Supra), Sewa Ram's case (supra) and Dasarath Lal's case (supra), it may be stated that in those decisions the Supreme Court decision in Narcotic Control Bureau v. Kisanlal (supra) was not noticed. The decision of the Supreme Court is binding on all Courts under Article 141 of the Constitution of India. Hence it is' evident that the provisions of Section 37 of the NDPS Act which are intended to restrict the powers to grant bail have to betaken into account in spite of the fact that the procedure followed during search and seizure was illegal and provisions of sections 42 and 50 of NDPS Act were not complied with.

5. It is note-worthy that section 37 of the NDPS Act makes no exception, hence even if the procedure prescribed under sections 42 and 50 of NDPS Act has not been followed, while considering b