The powers of Section 438 of the Code of Criminal Procedure, 1973 to be unavailable to a Special Court constituted under the NDPS Act, 1985 was required to be taken away expressly by the NDPS Act, 1985 itself.

Ashim Kumar Banerjee, J.

I have read the well-versed lucid judgment of My Lord the Hon’ble Mr. Justice Debangsu Basak. His Lordship not only dealt with each and every aspect that the learned Counsel appearing for the parties as well as the Amicus Curiae highlighted but also dealt with all the precedents relevant on the subject and ultimately answered the query that in my view, is accurate and would deserve no disagreement on any score. At the risk of repetition, may I add a few lines.

The precedents cited at the bar already dealt with an identical issue while considering the provisions of Section 12AC of the Essential Communities Act 1955 as amended by the Essential Commodities (Special Provisions) Act 1981. The said provision is Para-materia with Section 36 of the NDPS Act. The precedent (Pijush Kanti Dey (supra)) would answer the identical query and hold, power under Section 438 could be exercised by the Special Court constituted under the said Act of 1955.Section 37(1) of NDPS Act 1985 was Para material, however, distinction is sought to be raised as Section 37(1) although made a restriction on certain offences under said Act of 1985 outside the scope of release of the accused on bail unless the requirement under sub-section b (i) and b (ii) are complied with. Sub-Section 2 of 37 would make it clear, the limitation on granting bail under sub-section 1 are in addition to the limitations already provided under the Code of Criminal Procedure. Section 36(c) of the said Act of 1985 would provide, “save as otherwise provided in this Act” in Criminal Procedure Code including provisions as to bail and bonds would apply. On a combined reading of Sections 36 (c) and 37 it is sought to be suggested, since anticipatory bail was not included the Section 438 would have no application. We fail to reason. If we closely read Section 37 that would provide limitation on grant of bail it did not speak of the power of the Court to grant anticipatory bail.36 (c) would make the Code of Criminal Procedure applicable except the area that would be in conflict with the provisions of the said Act of 1985.

My Lord has elaborately dealt with personal liberty guaranteed to the citizens of the country under Article 21 of the constitution. Constitution is our basic structure of all laws, rules and regulations. The Act of 1985 or the Code of 1973 was no exception. The legislature is permitted to enact laws that would put restriction on some rights without disturbing the basic structure of the Constitution. Such restriction in my considered view should be explicit. It could not be applied particularly when it would come in conflict of one’s personal liberty guaranteed by the Constitution. Neither in the said Act of 1985 nor any other law for the timing in force would put any explicit fetter on the Court to consider the prayer for anticipatory bail under Section 438 that the Code of Criminal Procedure empowered the Court of sessions. The Code of Civil Procedure and Code of Criminal Procedure are two epics that would govern the entire civil and criminal field respectively. Unless it is explicitly prohibited, as observed above, any person anticipating criminal proceeding as against him resulting an arrest, is entitled to approach the High Court or the Court of session for an order to the effect, in the event of his arrest he shall be released on bail. However, exercise of such a power by the High Court or the Court of Session is subject to the consideration of certain factors prescribed under Section 438. The query made to us did not suggest, a person anticipating an arrest for an offence under the said Act of 1985 would not be entitled to invoke Section 438 in view of the restriction if any imposed in case of bail under Section 37 or any other provision of the said Act of 1985. It would pre-suppose, the querist would admit the power of the Court of law however, the querist wants to know the fora particularly whether special Court established under