The main legal point established in the judgment is the interpretation of Sec. 37, 25-A, and 27-A of the NDPS Act in the context of granting bail.

1. The petitioner, was arrested on 2.9.2010 for the offence punishable under Secs. 21, 23, 25A, 27A, 28 and 29 of NDPS Act read with Rule 3 of RCS Order 1993.

2. The case of the prosecution is that on the basis of prior information, the NCB Officials seized 12 Drums each containing 25 kgs of Ephedrine which is a Controlled Substance. The above said contraband was seized on 1.9.2010 from the office of the petitioner. The investigation revealed that the petitioner, a Malaysian National has procured 300 kgs of Ephedrine and handed over to the Shipping Agent at Chennai for the shipment to Malaysia. The petitioner was apprehended while he was about to depart from Chennai and statement was recorded. The preliminary test conducted by the officers on the spot, answered positive for Ephedrine, a control substance, covered under the NDPS Act, read with NDPS (Regulation of Controlled Substance) Order 1993. The required No Objection Certificate for the export of the control substance was not available. The samples were drawn and the test report confirmed the presence of Ephedrine Hydrochloride, a control substance. Statement under Sec.67 of NDPS Act admitting the guilt and the involvement of the petitioner was also recorded and the petitioner was remanded to judicial custody. The petitioner is before this court seeking bail.

3. Mr.R.C. Paul Kanagaraj, learned counsel submitted that the alleged contraband is only a controlled substance coming under Sec.9-A of the Act and any contravention of orders made under Sec.9-A will attract punishment only under Sec.25-A of the Act. The learned counsel also pointed out that there is no minimum punishment under Sec.25-A and the imprisonment may extend to 10 years. Therefore, it will not attract section 37 of the Act, where there is a bar for granting bail.

4. The learned counsel further pointed out that if Sec.37 of the Act is not applicable, then the petitioner is entitled to be released on bail. The learned counsel further pointed out that substantial investigation was already over, statements were recorded and the alleged contraband was also seized. The learned counsel for the petitioner further submits that in similar circumstances, this Court has already granted bail for the co-accused.

5. On the contrary, Mr.R. Dhanpal Raj, Special Public Prosecutor submitted that the petitioner has committed an offence under Sec.9-A read with 25-A, 21, 23, 27-A, 28 and 29 of NDPS Act read with the provisions of NDPS (Regulation of Controlled Substance) Order 1993).

6. The leaned Special Public Prosecutor further submitted that section 25-A prescribes rigourous imprisonment which may extend to ten years and therefore, sec.37 of the Act is attracted. The learned Special Public Prosecutor pointed out that the petitioner is a procurer of the contraband and an offence under Sec.27-A of the Act has been committed by the petitioner, which is covered under Sec.37 of the Act. He relied on a decision reported in 2001 STPL (I.E) 29317 SC, wherein the Supreme Court held as follows:

"5. The scheme of section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr.P.C. But is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. As per the mandate of Section 37 no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be rele