Section 37 of NDPS Act imposes limitations on granting bail, requiring reasonable grounds for believing the accused is not guilty and not likely to commit any offence while on bail.

D. Murugesan, J.

The petitioner has approached this Court seeking for grant of bail in C.C.No.261 of 2008 on the file of the Special District and Sessions Judge EC and NDPS Act Cases, Madurai.

2. A case was registered against the petitioner for the alleged offence under Sections 8 (c) r/w. 20 (b) (ii) (C) and Section 25 of Narcotics Drug and Psychotropic Substance Act. He was arrested and remanded to judicial custody on 18/10/2007. In support of the petition, the petitioner had argued before the learned Single Judge that he is in judicial custody for a period of 283 days and co-accused No.3 was released on bail in Criminal Original Petition No.4341 of 2008 dated 18/6/2008. By order dated 13/8/2008, the learned Single Judge ordered as follows:-

"2. The learned counsel for the petitioner submits that the petitioner is one of the accused in this case and the allegation is that the Inspector of Police while conducting a raid along with his party on information, searched over the Auto and found two bags of 35 Kg of Ganja in each and three persons, who were in the Auto were arrested. The learned counsel for the petitioner further submits that among three persons one accused by name Raman had been released on bail by this Court on 18.06.2008 in Crl.O.P.(MD).No.4341 of 2008 on the ground that the final report has been filed and no other case is pending against him.

3. This Court perused a copy of the order passed by this Court in Crl.O.P.(MD).No.4341 of 2008 dated 18.6.2008, in which it is observed in the order as follows:

"2. It is represented on the side of the petitioner that the petitioner is an auto driver and he has no connection whatsoever with the alleged offences and he has been falsely implicated in the present case and from 18.10.2007, he is in custody and under the said circumstances, the present petition is filed for getting bail.

3. The learned Government Advocate (Criminal Side) has submitted the concerned Case Diary for the perusal of the Court and the Court has perused the same and found that one Paramasivam, Sub-Inspector of Police, has lodged the complaint on 17.10.2007 and the same has been registered in crime No.179 of 2007 under the said Sections. The Court has further perused the case diary and found that against petitioner and others a final report has been filed on 13.01.2008. Further it is seen from the record that the petitioner is an auto driver and the petitioner has been arrested only on the basis of confession alleged to have been given by the co-accused.

4. Considering the fact that the petitioner is an auto driver and since no case has been pending against him and since a final report has been filed against the petitioner, this Court is of the view to grant bail to the petitioner subject to the following condition."

4. The quantity involved in this case is 70 Kg of Ganja, which is a commercial quantity and as such, Section 37 of NDPS Act is attracted. But the co-accused Raman is released on bail without any observation with regard to Section 37 of NDPS Act.

5. Mr. Siva Iyyappan, the learned Government Advocate (Criminal Side), who represented in Crl.O.P. (MD).No.4341 of 2008 was heard. He had submitted that he brought to the notice of the Court that Section 37 of NDPS Act stands as bar for granting bail, but it was not incorporated in the order and he further submitted that the total quantity that was available in the auto rickshaw was weighing about 70 kg Ganja.

6. The learned counsel for the petitioner vehemently contended that as the co-accused had already been released on bail, applying the principles of equality, this petitioner also should be released on bail. But this Court hesitates to follow the order passed in Crl.O.P.(MD).No.4341 of 2008, since Section 37 of NDPS Act stands on the way of granting bail. Further taking into consideration that the accused Raman, who has already released on bail, though he is only a driver of the auto, as per Section 35 of the NDPS Act, the culpa