The main legal point established in the judgment is the interpretation and application of Section 37 of the N. D. P. S. Act in granting bail to the accused.

( 1 ) THIS is an application for bail.

( 2 ) ON a search of the applicant 5 gm. of brown sugar was recovered. The applicant has been arrested in connection with an offence punishable under Sections 17/18, N. D. P. S. Act (hereinafter referred to as Act ).

( 3 ) IT has been argued that the search was not in accordance with Section 51 of the Act. It was also urged that public witnesses were not summoned to witness the search and recovery. Lastly, it was urged that Section 37 of the Act is not applicable to the High Court. Therefore, the High Court can look into the matter from its own angle.

( 4 ) I have heard the learned A. G. A. also. He has raised the preliminary objection that the Union of India should be also made a party to this case because the Union of India has a cell to control the menace of Narcotic Drugs and Psychotropic substances.

( 5 ) IN reply to the above objection the learned counsel for the applicant has urged that the sole purpose of making the State Government or Union of India as a party to the petition is only to give an opportunity to the State Government or Union of India to oppose the application if they so like. In this case the investigation is being done by the agency of State Government. Hence the State Government has been made a party.

( 6 ) IN respect of matters relating to the Act the provisions of Section 37 of the Act deal with the bail and cognizance in respect of offences under the Act. This section as amended up to this date reads as under:- "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 a term of imprisonment of five years or more under this Act 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 Procedures 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

( 7 ) THE above quoted section only provides that the Public Prosecutor must be heard before any person can be granted bail. Since notice had been given to the Government Advocate then it amounted to a notice to the Public Prosecutor, the Government Advocate holds the status of public prosecutor also. In such a situation sufficient compliance has been made by impleading State Government as a party and giving notice to the Government Advocate of this application. The preliminary objection, therefore, has no force, at all. Union of India is not required to be made a party.

( 8 ) IN respect of his first contention the learned counsel for the applicant has cited the State of Himachal Pradesh v. Sudarshan Kumar. 1989 Cri LJ 1412. It was held in this case by a Division Bench of Himachal Pradesh High Court that the designated officer is bound to inform person of his right to be taken without unnecessary delay to nearest Gazetted Officer or to nearest Magistrate to be searched in his presence. It has been urged that in the recovery memo it has been mentioned at the end that after recovery the applicant had declined to avail the opportunity to get himself searched before a gazetted officer or a Magistrate. It was urged that this was not a sufficient compliance. It is not desirable to make any comment on this matter unless the officer recovering the injuries criminating material had been examined and had an opportunity to explain the text of his recovery memo. Moreover Section 37 of the Act quoted above states that an accused c