JUDGMENT - Saldanha M.F., J.:—A furious debate ensued at the hearing of this bail application, has been preferred by a foreign national facing a charge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the N.D.P.S. Act”) which, inter alia, accuses him of an attempt to export 11.7 kgs. of heroin by concealing it in his registered baggage on 26-9-1988. The petitioner, along with four other persons, is alleged to have attempted to board Swiss Air Flight No. SR-77 bound for Geneva on the night of 26-9-1988. The Swiss Air Authorities had informed the Police that these persons who claimed to be travelling on Korean Passports, were in fact in possession of forged travel documents. Pursuant to this, a general alert was arranged at the airport by the Police in anticipation of a possible hijacking attempt. The group of five persons was seen arriving at the airport together and they checked-in in one lot and not separately. They were given their boarding cards along with the tickets, luggage-tags etc., after which they proceeded for immigration and customs clearance and proceeded to the departure lounge. The Police cordoned off the five persons and it is claimed that their hand baggage as also the registered baggage were searched in the presence of Panchas. This search revealed that a huge quantity of 58.5 Kgs. of brown sugar valued at Rs. 58,50,000/ - was found concealed in the check-in baggage. We are in this case concerned with accused No. 1, who is the present applicant, and the prosecution alleges that he identified a dark-blue-rexine bag that had been checked-in and was bearing tag No. SR-888687-ADD-151-152, which was locked. This accused is alleged to have been in possession of the key and he opened the bag on being asked to do so by the Police, and on a search of the bag 11.7 kgs. of brown sugar was found concealed in it. 2. Shri Lalla, learned Counsel appearing on behalf of the applicant, has contended that, admittedly, the Police has been alerted on the suspicion that the accused was likely to hijack the aircraft. It was for this reason that the search was carried out for a possible check in relation to explosives or weapons. 2. Shri Lalla, learned Counsel appearing on behalf of the applicant, has contended that, admittedly, the Police has been alerted on the suspicion that the accused was likely to hijack the aircraft. It was for this reason that the search was carried out for a possible check in relation to explosives or weapons. Shri Lalla stated that there can be no deemed or vicarious liability in respect of the baggage that has been checked-in by other persons, even if it is alleged that they were travelling together. He pointed out to me that as far as this applicant is concerned, that he was not in possession of any baggage tags and if the dark-blue-rexine bag was checked-in by the applicant or belonged to him, the baggage tag in relation to this luggage would have been attached to his ticket. The tag in question was attached to the ticket of accused No. 3 and, therefore, Shri Lalla contended that there can be no legal liability vis a vis that piece of luggage as far as the present accused is concerned. He also contended that the Panchanama and the statements of the officers wrongly mentioned that the bag was opened by the applicant and that he accepted the ownership of it. Shri Lalla, therefore, contended that on the facts of this case, the present applicant must be enlarged on bail. 3. Shri Laila has made a specific grievance of the fact that there has been flagrant violation of the provisions of sections 43, 50, 52. 55 and 57 of the N.D.P.S. Act. He has placed reliance on several decisions, which I shall briefly summarized below :— i) (Criminal Application No. 2 769 of 1992)1. decided by I.G. Shah, J., on 20-11-1992. wherein it was held that flagrant disregard of all the provisions which are provided as safeguards would entitle the applicant to bail. ii) 1990(3) Bom.C.R. 181 in the case of (Usman Haidarkhan Shaikh v. State of Maharashtra)2, wherein at the final hearing stage, a Division Bench of this Court set aside an N.D.P.S. conviction while holding that the evidence of the Police Officers who failed to comply with the provisions of the Act cannot be implicitly relied upon to base a conviction. ii) 1990(3) Bom.C.R. 181 in the case of (Usman Haidarkhan Shaikh v. State of Maharashtra)2, wherein at the final hearing stage, a Division Bench of this Court set aside an N.D.P.S. conviction while holding that the evidence of the Police Officers who failed to comply with the provisions of the Act cannot be implicitly relied upon to base a conviction. iii) 1992 Cri.L.J. 399 in the case of (Lawrence D'Souza v. State of Maharashtra)3, wherein a learned Single Judge of this Court (Chaudhari, J.) held that the non-compliance with the procedural requirements can be looked into even at the bail stage. iv) 1992 Mh.L.J. 143 in the case of (Shankar Behare v. State of Mah.)4, wherein a learned Single Judge of this Court (M.S. Vaidya, J.) held that bail could be granted in a case where several serious breaches of procedural requirement have taken place. v) (1992 Cri.L.J. 3034)5, wherein a Division Bench of this Court (Dudhat and Da Silva, JJ.) at a final hearing stage, set aside an N.D.P.S. conviction as there was no explanation for non-compliance of several procedural requirements couple with inconsistencies in evidence of prosecution witnesses on vital aspects. vi) 1991(2) Crimes 789 in the case of (Miss Ulrike Appelhagen v. State of Goa)6, wherein a Division Bench of this Court (Dhabe and Da Silva, JJ.), while setting aside a conviction in an N.D.P.S. case, held that non-compliance with the mandate of section 50 of the N.D.P.S. Act would prejudicially affect the accused. vii) 1991 Cri.L.J. 696 in the case of (Md. Jainulabdin v. State of Manipur)7, wherein a Division Bench of the Gauhati High Court, inter alia held that the provisions of section 50 of the N.D.P.S. Act are mandatory. viii) 1991 Cri.L.J. 1991 in the case of (Salamat Ali v. State)8, wherein a learned Single Judge of the Madhya Pradesh High Court has held that non-compliance of the provisions of section 50 of the N.D.P.S. Act would render the conviction illegal. ix) 1992 Cri.L.J. 2929 in the case of (Sewa Ram v. State)9, wherein a learned Single Judge of the Allahabad High Court has held that the question of violation of the provisions of sections 42 and 50 of the N.D.P.S. Act is something that can be considered at the stage of grant of bail. ix) 1992 Cri.L.J. 2929 in the case of (Sewa Ram v. State)9, wherein a learned Single Judge of the Allahabad High Court has held that the question of violation of the provisions of sections 42 and 50 of the N.D.P.S. Act is something that can be considered at the stage of grant of bail. x) 1990 Cri.L.J. 1093 in the case of (Mohanlal v. State of M.P.)10, wherein a learned Single Judge of the Madhya Pradesh High Court has held that where there is a breach of the safeguards provided under the Act the conviction is liable to be set aside. xi) 1992 Cri.L.J. 2342 in the case of (Nathiya v. State of Rajasthan)11, wherein a learned Single Judge of the Rajasthan High Court held that non-compliance of the provisions of section 50 of the N.D.P.S. Act is a serious flaw which discredits the prosecution case on the basis of which the conviction was liable to be set aside. xii) 1991(2) Bom.C.R. 586 the case of (Mainuddin v. State of Maharashtra)12, wherein a Division Bench of this Court (Dudhat and Vaidya JJ.) set aside a conviction under the N.D.P.S. Act on the ground that non-compliance in that case went to the root of the matter and vitiated the prosecution in the absence of satisfactory explanation from the prosecution. 4. As against this position, the learned A.P.P. relied on a Division Bench decision of this Court in the case of (Hemant Vyankatesh Agwan v. State of Maharashtra)13, 1990(1) Bom.C.R. 433 . decided by M. S. Deshpande and B.G. Deo, JJ., wherein the Court held that the relevant provisions of the Act were directory and not mandatory. 5. I do not need to reproduce the numerous other decisions wherein different shades of opinion have been expressed in relation to some of these provisions but the consensus of the judicial opinion as far as our High Court and the other High Courts are concerned is to the effect that these provisions are not mandatory in the sense that if there is non-compliance, they will not ipso facto act as a bar to a conviction. Two factors need to be taken, into account, the first of them being that at the stage of granting bail, there is no dispute about the proposition that non-compliance can certainly be pleaded and that if it is flagrant, a Court will certainly take it into account. Two factors need to be taken, into account, the first of them being that at the stage of granting bail, there is no dispute about the proposition that non-compliance can certainly be pleaded and that if it is flagrant, a Court will certainly take it into account. However, this is subject to the second condition, namely, that what is sometimes alleged as a breach can be explained or can be overcome and, therefore, it would be hazardous for a Court at a cursory hearing when bail is asked for without affording the prosecution a complete opportunity, to record a finding that the breach is fatal to the prosecution. 6. In cases under the N.D.P.S. Act, one needs to take cognizance of the nature of the offence and the fact that the Legislature has incorporated a special provision by way of section 37 of the N.D.P.S. Act, which places serious restrictions on a Court in the matter of grant of bail. There is no dispute about the fact that if in a given case a person has wrongly been implicated or if the material adduced by the prosecution is so weak or sketchy or worthless or, for that matter, non-existent, that a Court would deny bail to an accused in those circumstances. However, where the material appears to be sufficiently good, the prohibitions imposed by section 37 of the N.D.P.S. Act will certainly disentitle an accused to the grant of bail. 7. Coming to the facts of the present case, to my mind, the objections canvassed by learned Counsel on behalf of the applicant are both technical and academic. Certain grievances have been made with regard to the alleged breaches, such as the accused not being informed of the grounds of the arrest, the procedure followed at the stage of sealing, re-sealing, etc., all of which, to my mind, are not of such consequence that they can be destructive to the prosecution. This is a case in which a large amount of contraband has been seized and where the prosecution is able to establish a sufficiently strong nexus between the seized material and the accused. Under these circumstances, to my mind, the accused would not be entitled to the grant of bail. 8. This is a case in which a large amount of contraband has been seized and where the prosecution is able to establish a sufficiently strong nexus between the seized material and the accused. Under these circumstances, to my mind, the accused would not be entitled to the grant of bail. 8. The majority of the decisions relied upon by Shri Lalla relate to the setting aside of the conviction where the considerations are entirely different in so far as all the material adduced by the prosecution was before the Court and the defence had an opportunity of testing it. In the present proceeding, which is at a pre-trial stage, many of those principles would not be applicable and, on the facts of the present case, in any event, no case is made out for the grant of bail. The criminal application fails and stands dismissed. The rule is accordingly discharged. The observations in this order shall not prejudice either the prosecution or the defence at the trial. Application dismissed. -----