Matter being under investigation no elaborate enquiry called for.

This petition is filed for grant of bail under Sec. 439 of Criminal Procedure Code. The petitioner along with two others is alleged to have committed an offence under Sec. 20 (b)(1) of Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as N.D.P.S. Act. The petitioner in his bail petition has averred as follows:

“The petitioner is the second accused in Crime No. 515 of 1994 of the Chinnamannoor Police Station, for the offence under Sec. 20(b)(1) of N.D.P.S. Act. In that he has been implicated by the first accused Maharajan, as the person who escaped, along with the third accused Gurusamy, driver of the Ambassador car MDA.3767 which was halted and checked by the police party at Iyampatti Village about 5 kilometres from the Chinnamannoor Police Station at about 9.00p.m. on 110. 1994 and found to contain several packets containing in all about 241.400 kg. of ganja. The police came with the first accused to the residence of the petitioner at Bodi on the morning of 110. 1994 and as the petitioner was attending to his poultry business in the town, the police took away the younger brother Sugumar, who was a civil engineer doing private contract work. Upon hearing this, the petitioner with his father Mokkasamy went and appeared at the Chinnamannoor Police Station on the evening of 16,10.1994 and even though he declared his innocence, he was taken to custody and produced before the Magistrate at his residence and remanded to 15 days custody in the Sub Jail, Uthampalayam. The petitioner moved for bail before the learned Special Sessions and District Judge, Madurai, which was dismissed by order in court in Crl.M.P.No. 2343 of 1994 on 210. 1994. Hence the petitioner moves this petition for bail.”

2. The bail petition is opposed by the learned Public Prosecutor, under Sec. 37 of N.D.P.S. Act, learned counsel for the petitioner submitted that the petitioner is innocent and not at all involved in the alleged offence, under Sec. 20(b)(i) of N.D.P.S. Act and he has been falsely implicated by the first accused. The first accused is a habitual dealer in ganja business on a very large scale. He further submitted that at the time of the alleged occurrence, viz., on 110. 1994 at 9.00 p.m. the petitioner was not at the spot. The petitioner was having his poultry business and that on 110. 1994 he was in his hometown engaging in his usual business. In support of the same, petitioner has filed affidavits of the local people as the only available mode to prove the same.

3. Mr.A.A. Selvam, learned counsel for the petitioner submitted that Sec. 37 of N.D.P.S. Act is not an absolute bar for the grant of bail. In support of the said contention, he cited the ruling of Gauhati High Court, reported in Mrs. Kheiirun Bibi v. State of Manipur, 1994 Crl.L.J. 236 (NOC.), wherein, it is observed as follows:

“Sec. 37 does not provide absolute bar to grant of bail: It cannot also be rejected merely on the ground that some materials have been found against accused.” He further submitted that once an objection is taken by the Public Prosecutor for grant of bail, it is always open to the petitioner to adduce evidence in support of the contention that the petitioner is not guilty of the offence and is not likely to commit any offence while on bail. In this connection, Mr.A.A. Selvam, the learned counsel for the petitioner submitted that the power to grant bail is a judicial power. A grant of bail is in exercise of judicial power and the proceedings for grant of bail is a judicial proceeding. Learned counsel referred to Sec. 2(i) of the Criminal Procedure Code which defines Judicial Proceeding as follows.

"2(i) Judicial proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath."

In support of the said contention, the learned counsel referred to a ruling in Kamalapati v. State of West Bengal, 1970 Crl.L.J. 679 at 693, wherein the Supreme Court observed as follows:

"There is nothing in the conte