AMIT TALUKDAR, J.

( 1 ) SINCE a Division Bench while dealing with an application under section 439 of the Code of Criminal Procedure (hereinafter referred to as the said Code) in respect of an offence punishable under section 21 of the Narcotic drugs and Psychotropic Substances Act, 1985 (for short, the said Act) felt:-"whether the restrictions/limitations imposed by or under section 37 of the ndps Act upon the power of the Court to grant bail are also applicable to an offence in relation to ganja etc. made punishable 20 (i) under section thereof?"

( 2 ) THEIR Lordships of the said Division Bench directed the matter be placed before the learned Chief Justice for constitution of a larger Bench. Pursuant thereof we have been asked to answer the said reference after formation of this special Bench by the Hon'ble the Chief Justice.

( 3 ) THE factual matrix germane for answering the reference in our view requires to be set out for profitable discussion.

( 4 ) CONSEQUENT to submission of the chargesheet in respect of the offence of section 21 of the said Act against the petitioners cognizance was taken by the learned Special Court (under the said Act), Barasat and prayer for bail was refused. The same prompted the petitioners to file the application under section 439 of the said Code before this Court. The Division Bench heard the matter and was of the view:"it appears to us that there is a divergence of opinion amongst different high Courts on the question whether restrictions/limitations imposed upon the power of the Court to grant bail by or under section 37 of the Act are applicable to an offence in relation to ganja etc. in respect of which punishment prescribed is imprisonment for a term which may extend upto 5 years. "

( 5 ) WE have heard the submissions made at the Bar and had the very able assistance of the learned Amicus Curiae, appointed by us earlier.

( 6 ) TO appreciate the agony, which haunted the mind of the Division Bench we have to rewind to the time when the Division Bench made the reference. Their Lordships made the reference on 27. 2. 2001. What was the law prevalent in those times has to be adverted to. Section 37 of the said Act stood as on the time of the reference as read hereunder :-"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) every offence punishable under this Act shall be cognizable; (b) 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 (ii) where the Public Prosecutor opposes 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 or any other law for the time being in force on granting of bail. "

( 7 ) OBVIOUSLY the said reference had great impact on the question, which has fallen for discussion as to whether even if the articles being ganja weighing respectively 500 grams and 450 grams seized from the two petitioners on 16. 1. 2000 and in view of section 20 (i) of the said Act the maximum term of imprisonment could extend upto five years whether the rigours of section 37 (1)would apply. It would have been a serious food for though and intense deliberation by us before we would have come to our opinion on the basis of the said position.

( 8 ) WHEN the Division Bench made the reference the question was very much pertinent in view of the rigid grip of section 37 of the said Act. This agony of the division Bench was totally justified. More illustratively this point was considered by the Supreme Court in Intelligen

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