Do the restrictions imposed on the Court under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') in granting bail to a person accused of an offence which is specified therein apply while considering an application for pre-arrest bail filed by such person under Section 438 of the Code of Criminal Procedure, 1973? (hereinafter referred to as 'the Code'). This question arises for consideration in this application for anticipatory bail.

2. The petitioner is the second accused in the case registered as Crime No. 943/2018 of the Perumbavoor police station under Section 21(c) of the Act. The prosecution case can be briefly stated as follows: On 12.03.2018, at about 08.22 hours, the Sub Inspector of Perumbavoor police station received reliable information that a person was transporting hashish by travelling on the motor cycle bearing registration No. KL-06/H-743 and that he was proceeding from Kothamangalam to Perumbavoor. By 09.00 hours, the Sub Inspector reached the road near Asramam School at Perumbavoor and started checking of vehicles. When he saw the aforesaid motor cycle coming from east to west, he intercepted it. The first accused was the person who was riding the motor cycle. After complying with the necessary legal formalities, the Sub Inspector searched the contents of the bag found in the possession of the first accused. The bag contained 1994 grams of hashish oil in a packet. The Sub Inspector seized it and arrested the first accused. On interrogation of the first accused, it was revealed that the hashish oil was entrusted with him by the petitioner for selling it. On the basis of such information, the petitioner is implicated as the second accused in the case.

3. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor and perused the case diary.

4. Learned counsel for the petitioner submitted that there is absolutely no material to connect the petitioner with the hashish oil allegedly seized from the possession of the first accused. Learned counsel would also point out that the petitioner is implicated in the case solely on the basis of the confession statement given to the police by the first accused which is inadmissible in evidence. On the other hand, learned Public Prosecutor submitted that there are materials collected by the investigating officer confirming the complicity of the petitioner in the crime and pre-arrest bail cannot be granted to the petitioner in view of the provisions contained in Section 37 of the Act.

5. The quantity of hashish oil allegedly seized from the possession of the first accused is 1994 grams. There is no dispute with regard to the fact it constitutes commercial quantity. Section 21 of the Act provides that whoever, in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable in the manner provided in clauses (a) to (c) therein.

6. Section 37 of the Act reads as follows:

“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 he 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.

(2) The limitations on granting of bail specified in