1. These two criminal miscellaneous applications have been referred to Division Bench for consideration. The questions that arise for consideration are as. to whether in spite of the limitation imposed under Sec. 37(l)(b) of the Narcotic Drugs and Psychotropic Substance Act, 1961 (hereinafter to be referred to as the said Act) with regard to grant of bail an accused who is booked under Sec. 20 of the Act is entitled to bail if the stringent measures and formalities incorporated in the Act for arrest and seizure is not literally complied.

2. It is now settled by the decision of the Supreme Court in Narcotics Control Bureau V/s. Kishan Lall, that provision of Sec. 37 of the said Act being in negative terms limiting the scope of applicability of the provision of the Code of Criminal Procedure regarding bail, the power of the High Court under Sec. 439, Cr. P. C. are circumscribed by Sec. 37 of the Act. The Supreme Court had no occasion to consider the question whether breach of various safeguard provided in the Act in the matter of arrest etc. will render the arrest non est entitling the detenu to bail. This aspect of the matter has been considered by several High Courts.

3. There are two petitioners in Crim. Misc. 5050/93R who were arrested by the Police in Dhanbad P.S. Case No. 536/93 under Sec. 20 of the Act. On 2.9.1993 at 3.20 a.m., Sub-Inspector of Bank More P.S. Jitendra Singh was on patrolling duty accompanied by armed force. He detected two persons in the vicinity of diamond crossing. They were moving in a suspicious manner towards Dhanbad Railway Station. The officer asked them to stop. The suspects ignored the warning and made attempt to escape but were nabbed with aid of constables after chase. The petitioners disclosed their names. From the possession of petitioner Anil Kumar Singh, 5 kgs. Ganja wrapped in a plastic bag was recovered. The second petitioner, Arbind Singh, is the brother of Anil Kumar Singh. The ganja was seized in presence of two witnesses.

4. The petitioners in Cri. Misc. 5050/93R then moved bail petitions before the Sessions Judge, Dhanbad, but the same was rejected.

In Cri. Misc. No. 4304/93R the two petitioners, namely, Kamlesh Kumar and Rakesh Kumar, are accused in Gorhar P.S. Case No. 19 of 1993 dated 4.8.1993 under Sec. 20 of the Act. On 4.8.1993, the officer-in-charge of Gorhar Police Station, MithileshKumar Singh, when case back to the police station from patrolling duty. He came to know from confidential information that Gonia was being carried in a bus bearing registration No. BR-2-P-5424 and the said bus is coming from Bihar Shariff. He made a station diary entry No. 48 dated 4.8.1993 and then with the other police officers went to Kaltharia Ghati. At about 4.15 a.m. a bus came from the side of Barbhatta and the same bore registration No. 2l-P-5424. In wind of search of the said bus after observing due formalities of law in presence of independent witnesses, he claims to have recovered from the cabin of the bus one brief case of light green sky colour which was an old and in that he found three kilograms of Gonia covered with paper. According to him, the said brief case belonged to Kamlesh Kumar. He also recovered one white coloured plastic bag and the same also contained three kilograms of Gonia and according to the prosecution the same belonged to Rakesh Kumar. Accordingly he prepared seizure list in presence of the witnesses, and since the petitioners could not give any explanation or show any licence for keeping the same hence he is alleged to have arrested them and a first information report was drawn up and investigation was entrusted to the Assistant Sub-Inspector of Police.

In this case also the petitioners moved for bail before the Sessions Judge, (Special Judge) Hazaribagh, who rejected the bail application of the petitioners on 4.9.1993.

5. Sec. 20 of the Act provides punishment for contravention in relation to cannabis plant and cannabis, provides. It reads as follows:

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