IMPORTANT POINT
• The Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence
• The Court must also be satisfied that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban for granting bail operates

ORDER :

1. This Crl.M.C. has been filed by the State of Kerala represented by the Excise Inspector, Excise Range Office, Nilambur, challenging Annexure - A1 order dated 16/04/2020 passed by the Court below in CMP No.56 of 2020, granting bail to the respondent herein, who is the accused in Crime No.12 of 2020 of Nilambur Excise Range, registered for the offences punishable under S.22(c), S.20(b)(ii)(A), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act").

2. The prosecution allegation is that on 19/02/2020 at about 1.20 p.m., the respondent and the other accused were found transporting 56.64 gm of ganja, 490 mg of LSD, 4.122 gm of MDMA crystal and 21.22 gm of MDMA pills in a motor cycle bearing registration No. KL-54-D-5787, in contravention of the provisions of the NDPS Act. The respondent herein and the other accused were arrested from the spot. The respondent herein filed Bail Application before the Court below under S.439 Cr.P.C., which was allowed by the Court below as per Annexure - A1 order.

3. Heard both sides.

4. It appears from paragraph 5 of Annexure - A1 order that the learned Public Prosecutor opposed the application. However, the Court below, without considering that aspect, passed Annexure - A1 order.

5. The offences alleged against the respondent and the other accused include the offence under S.22(c) of the NDPS Act as well. S.22(c) of the NDPS Act is an offence involving commercial quantity. The jurisdiction of the Court to grant bail to a person accused of having committed the offence under the NDPS Act involving commercial quantity is circumscribed by the provisions of S.37 of the NDPS Act. At this juncture, it is profitable to refer to S.37 of the NDPS Act, which is extracted hereunder:

"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 S.19 or S.24 or S.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."

6. It is clear from the provision of S.37 of the NDPS Act that the offences under the NDPS Act are cognizable and non - bailable. It appears from the provisions of S.37 of the NDPS Act that in an accusation of having committed an offence involving commercial quantity, it is the mandate that the Public Prosecutor must be granted an opportunity to oppose the application before the release of the accused on bail. If the Public Prosecutor opposes the application, in order to enlarge on bail of any person accused of having committed the offence involving commercial quantity, the twin conditions mentioned in sub-clause (ii) of Clause (b) of sub-section (1) of S.37 of the NDPS Act are to be satisfied. The first condition is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. The Court must also be satisfied that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban for granting bail operates. That means, if and only if, the twin conditions are satisfied, then only the bail can be granted to any person accused of having committed the offence under the NDPS Act involving commercial quantity, if the bail applicatio