The main legal principle established in the judgment is the strict limitations imposed by Section 37 of the NDPS Act on granting bail for specified offences, and the recognition of the temporary nature of 'interim' bail, which can be granted in exceptional and extraordinary circumstances.

SANJIV KHANNA, J.

1. This order would dispose of the criminal reference made by the Single Judge in Bail Application No.983/2015, titled Athar Parvez vs. State NCT of Delhi. The aforesaid order records and makes reference to two earlier decisions of the Single Judge of this Court in Pushpa Rani vs. Narcotic Control Bureau, 122 (2005) DLT 68, and Atik Ansari vs. State (NCT of Delhi), 131 (2006) DLT 463, and notices perceptive divergence on the question; whether the Courts can grant "interim" bail when the conditions for grant of bail under Section 37 of the Narcotics and Psychotropic Substances Act, 1985 (“NDPS Act” for short) are not satisfied. In other words, the issue is whether the provisions and conditions of Section 37 of the NDPS Act would apply only to cases of "bail" or would also apply when the accused seeks "interim" bail.

2. We have had the advantage of hearing arguments by Mr. A.J. Bhambhani, learned Senior Advocate, who was appointed as an Amicus Curiae, Mr. Rahul Mehra, Standing Counsel (Criminal) who had appeared for the Government of NCT of Delhi and Mr. Rajesh Manchanda, Advocate for the Narcotics Control Bureau.

3. Section 37 of the NDPS Act reads 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 2 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.

(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 (2 of 1974) or any other law for the time being in force, on granting of bail.”

Two important limitations and fetters imposed by Section 37 of the NDPS Act are; (i) there should be reasonable grounds for believing that the accused is not guilty of such offence, and (ii) the accused is not likely to commit any offence while on bail. The negative pre-conditions are authoritatively binding and would curtail the discretion to grant bail.

4. The Supreme Court in Narcotic Control Bureau vs. Kishan Lal & Ors., (1991) 1 SCC 705, has accentuated on the importance of the non-obstante mandate of Section 37, notwithstanding anything contained in the Code of Criminal Procedure, 1973 ("Code" for short). An accused facing prosecution under NDPS Act for the offences mentioned in clause (b) to sub-section 1 to Section 37 should be released on bail only when the conditions of Section 37 of the NDPS Act are strictly satisfied. NDPS Act, a special enactment incorporating stringent provisions for the control and punishment of crimes relating to narcotics and psychotropic substances, incorporate particular and purpose built conditions. The stipulations in Section 37 of the NDPS Act are negative for they intend to restrict the power to grant bail under the Code. Subsequent decision in Union of India vs. Ram Samujh & Anr., (1999) 9 SCC 429, affirms and reiterates this ratio. Thus, grant of bail, when an accused is charged with the specified offences under the NDPS Act, is impaired and circumscribed by the rigorous negative pre-conditions adumbrated in Section 37 of the NDPS Act.

5. An order granting bail to a person facing prosecution under the specified offences under the NDPS Act must abide and confirm the said ratio. It should satisfy the positive conditions in Section 439 of the Code and also the negative stipulations of Section 37 of the NDPS Act. The question which would still ar