The High Court retains the power to grant anticipatory bail under S.438 of CrPC for narcotics offences, with no statutory exclusion of its jurisdiction.

3. This is first application under S.438 of CrPC for grant of anticipatory bail.

4. The applicant apprehends his arrest in connection with Crime No.01/2017 registered at Police Station Narcotics, Morar, District Gwalior for the offence punishable under S.8/22 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 [in short '' the Act, 1985''].

5. A preliminary objection has been raised by the Assistant Solicitor General for the respondent with regard to the maintainability of this application for grant of anticipatory bail, on the ground that the complaint has been filed and the applicant is absconding, therefore, the Court below has issued warrant of arrest and thus, the application for grant of anticipatory bail is not maintainable. Further, it is submitted by the Assistant Solicitor General for the respondent that in view of S.36 - A(3) of the Act,1985, the application for grant of anticipatory bail is not maintainable. To buttress his contention, the Assistant Solicitor General for the respondent has relied upon the judgment passed in the case of Rakesh Kumar alias Kukka Vs. State of M.P. [Cr.(M) No.108 of 2003] decided on 28-2-2003 by Himachal Pradesh High Court.

6. Replying to the preliminary objections raised by the counsel for the applicant, it is submitted that the applicant had filed the present application for grant of anticipatory bail on 10-7-2017 and during the pendency of this application, the respondent has filed the complaint on 12-7-2017, therefore, it cannot be said that the applicant was absconding on the date of filing of the application for grant of anticipatory bail before this Court. So far as the second preliminary objection with regard to maintainability of the present application in the light of the provisions of S.36A(3) of the Act, 1985, is concerned, it is submitted by the counsel for the applicant that there is no provision under the Act, 1985 which bars the jurisdiction of the High Court to entertain the application for grant of anticipatory bail. It is further submitted that S.37 of the Act, 1985, specifically confers the jurisdiction on the Special Court to grant anticipatory bail, therefore, any interpretation ousting the jurisdiction of the High Court to entertain the application under S.438 of Cr.P.C. for any offence under the Act,1985 would be against the spirit of S.37 of the Act, 1985.

7. Heard on the question of maintainability of application for grant of anticipatory bail.

8. The first preliminary objection with regard to the maintainability of the application for grant of anticipatory bail is that the complaint has been filed and since, the applicant is absconding, therefore, the arrest warrant has been issued by the Court, therefore, in the light of the order passed by this Court in the case of Sobran Batham vs. State of MP passed in MCRC No.4357/2017 the application for anticipatory bail is not maintainable.

9. From the record, it appears that the application for grant of anticipatory bail was rejected by the Special Judge by order dated 29-6-2017 and the present application was filed before this Court on 10-7-2017. According to the Assistant Solicitor General for the respondent, the complaint has been filed on 12-7-2017. Since, the application for grant of anticipatory bail was filed during the pendency of the investigation and the application was maintainable, as no warrant of arrest was issued against the applicant by that time, and the applicant had reasonable apprehension of his arrest. Thus, in the considered opinion of this Court, the application for grant of anticipatory bail cannot be thrown overbo