1. The High Court of Delhi by a common order in two petitions filed under The Narcotic Drugs & Psychotropic Substances Act, 1985 ('NDPC Act' for short) held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended S.37 of the NDPS Act are not applicable to the High Court. Aggrieved by the said order, the Narcotics Control Bureau has filed these two appeals.

2. The petitioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act. They were refused bail and remanded to judicial custody. On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody. The petitioners filed a writ petition as well as a criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to be released on bail as required under S.167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Court under S.37 (2) of the NDPS Act cannot be read as fetters on the High Court in exercise of powers under S.439 Cr.P.C, for granting bail. The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent.

3. The learned counsel appearing for the appellants submitted that the High Court has misconstrued the provisions of S.36-A and 37 of the NDPS Act and that latter Section as amended starts with the non¬obstante clause limiting the scope of the provisions of the Cr.P.C. in the matter of granting bail and as such the High Court has no untrammelled powers to grant bail inasmuch as the provisions of the amended S.37 of the NDPS Act override the provisions of S.439 Cr.P.C.

4. We may at this stage note the relevant provisions of NDPS Act. The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and Psychotropic substances etc. S.15 to 35 deal with various offences and penalties. S.36 provides for constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a judge of the Special Courts unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.S.36-A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate. Sub-section (b) of S.36-A lays down that if the Magistrate to whom an accused is forwarded under S.167 Cr.P.C, considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial. Sub-section (3) of S.36-A reads thus:

"Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S.439 of the Code of Criminal Procedure, 1973 (2 of 11974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under S.36."

Now let us note S.37 as amended in the year 1989 and the same is in the following terms:

"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 a term of imprisonment of five years or more under this Act shall