ORDER :

Mir Alfaz Ali, J.

1. Heard Mr. S.K. Talukdar, learned counsel for the petitioner and Mr. S.C. Keyal, learned Standing Counsel for the Narcotics Control Bureau (NCB). Also perused the report of the prosecution agency.

2. This is an application u/s. 439 Cr.P.C. praying for bail by the petitioner, namely, Nurezzaman Islam @ Nurajjaman, who is in detention in connection with NCB (Crime) Case No. 3/2019 under sections 21(c)/22(c)/29 of the NDPS Act, 1985.

3. Learned counsel for the petitioner Mr. Talukdar submits that no contraband substance was seized from the possession of the petitioner, nor any cogent material could be brought on record to connect the present petitioner with the offence of this case, except a statement of the co-accused purportedly recorded u/s. 67 of the NDPS Act. The contention of the learned counsel is that one cannot be convicted for a serious offence, like the one under the NDPS Act, which provides stringent punishment, solely on the basis of a so-called confession of a co-accused.

4. Resisting the prayer of bail of the petitioner, learned standing counsel Mr. Keyal contends, that the restrictions of section 37 of the NDPS Act applies in this case, as the contraband substances seized were of commercial quantity. Learned counsel further contends that the petitioner himself admitted his involvement in the illegal trafficking of contraband substance during statement recorded u/s. 67 of the NDPS Act, and as such, he is not entitled to the privilege of bail.

5. Undisputed position is that, commercial quantity of contraband substance is involved in this case and as such, the restriction of section 37 of the NDPS Act shall apply. Therefore, in terms of the provision of section 37 and also in view of the decision of the Supreme Court in Satpal Sing Vs. State of Punjab, (2018) 13 SCC 813, it is imperative on the part of the court to record a finding as to it's satisfaction as per section 37 of the NDPS Act, before granting or refusing bail. The Apex Court in Satpal Singh Vs. State of Punjab (supra) observed as under:-

"15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not been entered, the order dated 21.09.2017 is only to be set aside and we do so."

6. Section 37 (i) (b) of the NDPS Act reads as under:-

"(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 Crl.M.C. 6222/15 & con. cases 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."

7. A similar provision imposing restriction on bail has been provided under Section 21 (4) of the The Maharastra Control of Organized Crime Act, 1999, which is as under:-

"(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act, shall, if in custody, be released on bail or on his own bond, unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) 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.