The restrictions placed on the powers of the court to grant bail in certain offences under the amended Sec. 37 of the NDPS Act are applicable to the High Court while exercising its power under Sec. 439 of the Code of Criminal Procedure.

S.K.Chattopadhyaya, J.

1. The question in this case is to be decided as to whether the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Sec. 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herinafter described as NDPS Act for short), are applicable to the High Court while exercising its power under Sec. 439 of the Code of Criminal Procedure (for brevity the Code).

2. The petitioner was arrested in Mohania P.S. Case No. 124 of 1993 on the basis of an FIR registered under Secs. 8, 17 and 21 of the NDPS Act. On a confidential report, the officer-in-charge of Mohania Police Station conducted a raid along with the Raiding Party and arrested the petitioner along with 11 other persons named in the FIR recovered several quantities of heroin from all those arrested persons. It is alleged in the FIR that on seeing the Raiding Party, the persons who were either purchasing, selling or consuming heroin wanted to flee away but 12 persons were arrested on the spot. The petitioner was among those 12 arrested persons and from whose possession three purias of Heroin measuring about one gram was recovered.

3. The petitioner moved for bail before the learned Sessions Judge and by order dated 2-9-1993, the prayer was rejected and as such this application for bail before this Court.

4. Mr. Pandey, learned Counsel appearing on behalf of the petitioner has submitted that as the informant who is a S.I. of Police has no power under the Act to make search, seizure and arrest, the arrest is illegal and the petitioner is entitled to be released on bail. In support of his submission, he has drawn my attention to Annexure-3 and has submitted that notification issued under Sec. 41(1) of the N.D.P.S. Act, the Government of Bihar has empowered the officers of and above the rank of Inspector of Police to make seizure and arrest. It is further contended by Mr. Pandey that Sec. 50 of the N.D.P.S. Act casts an obligation on concerned officer to inform the person to be searched that he has option of making requisition to be taken before the Gazetted Officer or the Magistrate. But this mandate of law has not been fulfilled and as such the search, seizure and arrest was/were without jurisdiction. In a nutshell, the contention of Mr. Pandey is that as the mandatory provisions of the N.D.P.S. Act were not followed in this case, the search, seizure and arrest of the petitioner were illegal and as such the petitioner is entitled to be released on bail. In support of his contention, Mr. Pandey has relied upon decisions of several High Court, namely:

(1) 1988 Cr. Law Journal 528,

(2) 1990 Cr. Law Journal 1990,

(3) 1991 Vol. 1 SCC 705,

(4) 1993 Vol. 2 CCR 167 (67),

(5) 1993 Vol. 2 CCR 1319,

(6) 1993 Vol. 2 CCR 149 (SC),

(7) 1993 Vol. 2 CCR 1205 and ;

(8) 1993 Vol. 2 CCR 1575,

5. Mr. Pandey has also referred some of the orders passed by different learned Judges of this Court and has submitted that under same facts and circumstances, the accused were released on bail by this Court. In this connection he has referred to order dated 23-8-1993 passed in Cr. Misc. No. 11276 of 1993, order dated 29-7-1993 passed in Cr. Misc. No. 4674/93, order dated 20-9-1993 passed in Cr. Misc. No. 3284/93, order dated 2-11-1993 passed in Cr. Misc. No. 15255/93 and order dated 14-10-1993 passed in Cr. Misc. 5833 of 1993.

6. Mr. Ramesh Chandra, learned Counsel appearing on behalf of the State has, on the other hand, submitted that power of this Court to grant bail under Section 439 is subject to Sec. 37 of the N.D.P.S. Act and before granting bail, the High Court must be satisfied that there are reasonable ground for believing that the accused is not guilty of such offence and secondly, that the accused is not likely to commit any offence while on bail. It is further submitted that non-compliance of provision of Secs. 41, 42, 43 or 50 of the NDPS Act can be taken into consideration at the time of trial and not while disposin