The main legal point established in the judgment is that the statutory requirements of Section 37(1)(b)(ii) of the NDPS Act must be strictly complied with before granting bail in cases involving commercial quantity of narcotic drugs, and the principle of parity cannot override these mandatory provisions.

JUDGMENT

Sanjay K. Agrawal, J. - Proceedings of this matter have been taken-up through video conferencing.

2. The accused/applicant has moved this bail application under Section 439 of the Code of Criminal Procedure, 1973 for releasing him on regular bail during trial in connection with Crime No.412/2019, registered at Police Station Kanker for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the allegation that he along with other co-accused person was found in possession of 72.880 Kgs. of Ganja (commercial quantity).

3. In this bail application which is the first bail application filed on behalf of the applicant, the applicant herein claimed grant of bail for commission of the offence punishable under Section 20(b) of the NDPS Act principally on the ground of parity stating that co-accused Anthony Antiya (M.Cr.C.No.2118/2020) has been enlarged on bail by coordinate Bench by order dated 26-5-2020.

4. Mr. Mukesh Shrivastava, learned counsel appearing for applicant, would submit that since co-accused Anthony Antiya has already been enlarged on bail by coordinate Bench in similarly situated circumstances, therefore, the present applicant is also entitled to be released on bail, as a matter of right on the principle of parity.

5. Mr. Ravi Kumar Bhagat, learned Deputy Govt. Advocate appearing for the State, would submit that since commercial quantity of Ganja has been seized i.e. 72.880 Kgs. from the possession of the applicant herein and the co-accused, therefore, unless the statutory requirements incorporated in Section 37(1)(b)(ii) of the NDPS Act are satisfied by this court considering the application for grant of bail, bail cannot be granted without compliance of the provisions contained in Section 37(1)(b) of the NDPS Act, as the requirements are of mandatory character.

6. I have heard learned counsel for the parties and considered the rival submissions made herein-above and also went through the records with utmost circumspection.

7. Section 37(1)(b) of the NDPS Act states as under:-

"37. Offences to be cognizable and non-bailable.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity 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."

8. A careful perusal of the aforesaid provision would show that power and jurisdiction of the court considering the application for grant of bail under the provisions of the NDPS Act is circumscribed by the provision of Section 37 of the NDPS Act, in the case of a person accused of an offence punishable under Section 19(2), under Section 24(3), under Section 27-A(4) and also of offences involving commercial quantity. These limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail. It can be considered and granted only in a case where there are reasonable grounds for believing by the court concerned that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The above-stated statutory requirements are mandatory to be complied with while releasing the accused on bail.

9. The Supreme Court in the matter of Union of India v. Ram Samujh and another, (1999) 9 SCC 429 , considering the issue held that conditions imposed under Section 37(1)(b) of the NDPS Act are mandatory and observed as under: -

"8. To check the menace of dangerous drugs flooding the market, P