Wan Yahya J:

This is an application by a person accused of an offence under s. 6B(1)(a) of the Dangerous Drugs Act 1952, for bail pending disposal of the charge against him. He had been earlier produced before the President of the Sessions Court, Melaka on 15 April 1981 but he was denied bail by the learned President in view of s. 41B of the Act.

At the commencement of hearing before this Court his counsel, Mr. Hilary D'Cruz, with his usual precision, laid down two points for consideration of appeal, as follows:

(i) Whether s. 41B of the Dangerous Drugs Actwould make the offence non-bailable or preclude bail: and

(ii) In either of these two events whether the High Court is precluded from exercising its discretionary powers over bail.

Counsel first drew the subtle distinction between a non-bailable offence and an unbailable offence. He contends that non-bailable offences, as defined under "bailable offence" in s. 2 of the Criminal Procedure Codeinclude all offences, including those outside the Code, should be either bailable or unbailable offences. Following this reasoning, counsel argued, the offence under s. 6B(1)(a) of the Dangerous Drugs Ordinance would therefore fall under "non-bailable offence."

It is of particular interest to note that, although the Criminal Procedure Code makes a specific definition of "bailable offence" the draftsman deliberately avoided the use of that term in s. 387 of the Codeand instead employs the words "person other than a person accused of a non-bailable offence" as those entitled to be released in bail. It would seem that the intention of the legislature is not only to confine this right to bail to bailable cases of the Penal Code only but to extend it to offences against other statutes as well. This, at first sight, may lend some support to counsel's argument. I accept the view that where any statutory offence other than the Penal Codeis silent or makes no provision as to bail, then the First Schedule to the Criminal Procedure Code will apply and the offences can be classified either as bailable or non-bailable according to the provisions of the Schedule. However, the provisions only apply to cases where the particular statute creating the offence is silent on the question of bail. In my view, if provision is made in a later legislation, then the later provision will prevail over the provisions of the Criminal Procedure Code. The Code is not enacted with the absolute purpose of laying down a singularly mandatory procedure for all criminal offences but is intended for application to offences in which no provision for procedure is laid down. This intention is clear froms. 3 of the Criminal Procedure Code,which reads:

All offence under the Penal Codeshall be required into the tried according to the provisions hereinafter contained, and all offences under any other law shall be inquired into the tried according to the same provisions; subject however to any written law for the time being in force regulating the manner or place of inquiring into or trying such offences.

A non-bailable offence is no doubt an offence in respect of which the accused may be refused bail, but it is not an absolutely unbailable offence because the Court has been given the discretionary power to grant bail in certain circumstances and, in the case of offences punishable with life imprisonment or death, for special reasons. The High Court, it would appear by s. 394,has absolute power to grant bail. However this discretion is, as indicated earlier, only exercisable where no specific provision exists in the statute creating the offence. In our present case the provision for bail does exist. Section 41Bhas the effect of making the offence under the dangerous Drugs Act an absolutely unbailable offence.

Mr. D'Cruz's next argument is that even if s. 41B of the Dangerous Drugs ordinance has the effect of rendering the offence absolutely unbailable, the section was intended to restrict the discretionary power of bail by t