The provisions of Section 37 of the NDPS Act do not completely bar the grant of bail but rather impose certain conditions and limitations on the grant of bail. The provisions of Sections 50, 52, 53, and 57 of the NDPS Act are mandatory in nature and must be strictly complied with by the police and other investigating agencies.

S. S. Rathor and J JJ.

1. In this petition under Sec.439 of the Criminal Procedure Code, the petitioner has sought his release on bail during the pendency of trial in a case with the allegations against him that the Police Party headed by an Assistant Sub-Inspector of Police Station, Sherper was present in connection with a Nakabandi at Canal bridge road leading to village Salampur and at mid-night, a bullock cart was seen coming from opposite direction which was stopped by the police party. On enquiry, petitioner diseased this name as Gurdev Singh. A formal option has given to the petitioner if he wanted to be searched in the presence of gazetted officer but he declined and on search of the cart, six bags containing poppy husk (35 kgs. each), were taken into possession after taking sample from each bag. To recovered material and the bullock cart were taken into possession and Ruqqa was sent to the Police Station for registration of a case under Sec.15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act ).

2. The petitioner has emphatically denied the allegations of the prosecution. In addition, it is contended that though the police party had laid a Nakabandi much before the occurrence, yet no independent witness from the public was joined in the said operation. Of course the accused was asked as alleged in the F. I. R. if he wanted to be searched in presence of a gazetted officer, such formal mention needs strict proof. Further, it does not find mention in the F. I. R. that any reason were recorded and conveyed to the petitioner in terms of Sec.50 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act ).

3. Bail has been declined to the petitioner by the trial Court primarily on the ground that he is not entitled to bail in view of Sec.37 of the Act, as so observed by the apex Court in a Case reported as Narcotic Control Bureau V/s. Kishan Lal and others. Feeling aggrieved against the order of the trial Court, the petitioner approached this Court for concession of bail during the pendency of trial in terms of Sec.439 Cr. P. C. and Sec.37 of the Narcotic Act.

4. A few Courts in the country have almost adopted negative approach to the grant of bail in view of Sec.37 of the Act, presumably under the impression that the said provisions are complete bar to the grant of bail. In fact, it is not so, as so clearly laid down by the apex Court in its aforesaid decision rendered in Kishal Lals case (supra ). On perusal of the observations in the said judgment, it is apparent that this Court has every power to grant bail in terms of Sec.439 of the Code but the said powers are controlled and regulated by Sec.37 of the Act and facts of each case are to be appreciated in the light of the limitations imposed therein.

5. It is worth mentioning that while delivering judgment in Kishal Lals case (supra), the Supreme Court had placed reliance and extended full approval to the ratio of its previous judgment rendered in Usmanbhai Dawoodbhai Memon and Ors. V/s. State of Gujarat wherein it was held that in view of Sections 3 and 4 of the Terrorist and Disruptive Activities (prevention) Act, 1985, the High Court has no jurisdiction to entertain an application for bail under Sec.439 Cr. P. C. read with Sec.20 (8) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the "adat ). Sec.20 (8) of the T ADA and Sec.37 of the NDPS Act are identical in nature. However, while interpreting the scope of Sec.439 Cr. P. C. as limited by Sec.20 (8) of the TADA, the Hontble Supreme Court observed as under in Usmanbhais case (supra)23. That takes us to the approach which a designated Court has to adopt while granting bail in view of the limitations place on such power under 5.20 (8 ). The sub-section in terms places fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitati