Rashid Khan alias Rashid v. State (9) — 1993 DIGILAW 24 (RAJ)

Honble TIBREWAL, J.—In all these bail applications under Section 439, Cr.P.C. important questions of law of general importance have been raised, which also involve interpretation of Sections 36-A and 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (In short, The Act or NDPS Act). The questions may be formulated as under: — 1. Whether under the proviso (a) to Sec. 167 (2) of the Code of Criminal Procedure an accused can claim bail as of right if charge-sheet is not filed after completion of investigation within 90/60 days? 2. If so, whether the right can be claimed even after the filing of charge sheet? 3. Whether provisions of S. 37 of NDPS Act over-ride sub-section (2) of S. 167 of the Code of Criminal-Procedure, 1973, and bail cannot be granted unless conditions contained in clause (i) & (ii) of S. 37 (1) (b) are satisfied? (2) In all the three bail applications the accused-persons were arrested under S. 8/18 and 8/19 NDPS Act but cognizance by the Special Judge was taken after 90 days of their arrest. (3) The main contentions of the learned counsel for the petitioners are that a Judicial Magistrate can grant remand not exceeding 15 days in the whole, when a person accused of or suspected of the commission of an offence under NDPS Act is forwarded to him under Sub-section (2) or sub-section (2-A) of S. 167 of the Code of Criminal Procedure, and the Special Court constituted under the Act is only empowered to take cognizance in such cases. If a charge-sheet is not filed within 90/60 days, as the case may be, after completion of investigation, or cognizance is not taken by the Special Court within this period, then the accused are entitled to be released on bail under the proviso (a) to sub-sec. (2) of S. 167. In other words, the contention is that the provisions of bail contained in sub-sec. (2) of S. 167 , Cr.P.C. are mandatory in nature, and they are not controlled or fettered from the provisions contained in Section 37 (1) (b) (ii) of the NDPS Act. (2) of S. 167. In other words, the contention is that the provisions of bail contained in sub-sec. (2) of S. 167 , Cr.P.C. are mandatory in nature, and they are not controlled or fettered from the provisions contained in Section 37 (1) (b) (ii) of the NDPS Act. (4) On the other hand, learned counsel appearing for the Narcotic Department, and the learned P.P. vehemently contended that the provisions contained in Sec. 37 of the NDPS Act have an over-riding effect to all the provisions contained in the Code of Criminal Procedure regarding bail, which may be either under the proviso to sub-sec. (2) of S. 167 or S. 437/439, Cr.P.C. They further urged that no bail can be granted to an accused under the NDPS Act in an offence punishable for a term of imprisonment of five years or more, if the conditions contained in sub-sec. (b) (iii) of sub-sec. (1) of S. 37 are not satisfied, According to them, the special enactment will prevail over the general provisions of the Code. Then it was contended that even in sub- sec. (2) of S. 167, Cr.P.C. bail cannot be claimed as of right by an accused after the filing of the charge sheet, if he is involved in a non-bailable serious offence or offences. About taking cognizance the contention is that cognizance of the offence under the NDPS Act could be taken both by the Magistrate and the Special Court constituted under the Act. (5) I have given my anxious consideration to the above submissions. Question No. (1) and (2) are inter-connected and I take them jointly for decision. (6) Sec. 167, Cr.P.C. is supplementary to S. 57, which provides that a person arrested without a warrant, in the absence of a special order of the Magistrate under S. 167 shall be brought by the police before the Magistrate if the investigation is not completed within 24 hours. Sub-sec. (1) of Sec. 167, Cr.P.C. provides the procedure and lays down that the police officer while forwarding the accused to the nearest Magistrate would also transmit a copy of the entries in the diary relating to the case. The entries in the diary are made to provide the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. The entries in the diary are made to provide the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. At this stage, the Magistrate can release the accused on bail on an application made by him, if he is satisfied that there are no grounds to remand him to custody, but if he is satisfied that further remand is necessary, then he should act as provided under S. 167. At this stage, sub-sec. (2) of S. 167 comes into operation, which provides that the Magistrate to whom the accused is thus forwarded may, whether he has or has not the jurisdiction to try the case, from time to time authorises the detention of the accused in such custody, as he thinks fit for a term not exceeding 15 days in the whole, and if he has no jurisdiction to try the case or to commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Then comes the proviso, which reads as under: — "Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, — (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years ; (ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." (7) Under the Code of Criminal Procedure, 1898 (for short, The Old Code), the Magistrate to whom the accused was forwarded could remit him to police custody or jail custody for a term not exceeding 15 days in the whole under S. 167 (2). Even the Magistrate, who had jurisdiction to try the case could not remand the accused beyond the period of 15 days under S. 167 (2) of the Old Code. There was no other section, which in clear or express language, conferred the power of remand on the Magistrate beyond the period of 15 days during the pendency of the investigation, and before taking of cognizance on the submission of charge sheet. The "proviso" was introduced for the first time in the new Code of 1973, and the reason for the introduction is stated in the statement of objects and reasons as under : — "At present S. 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes such a longer period in practice. The practice of doubtful legality has grown where by the police file a "preliminary" or incomplete charge-sheet and move the court for a remand under S. 344 which is not intended to apply to the stage of investigation. While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution to the problem would be to extend the period of detention beyond 15 days where he is satisfied that adequate grounds exist for such detention." (S. 344 of the Old Code corresponded to S. 309 of the present Code.)." (8) The effect of the proviso incorporated in the new Code is to entitle an accused person to be released on bail, if the investigating agency failed to complete the investigation within the period specified. A person released on bail under the proviso to S. 167 (2), for the default of investigating agency, is deemed to be released under the provisions of Chapter XXXIII of the Code. A person released on bail under the proviso to S. 167 (2), for the default of investigating agency, is deemed to be released under the provisions of Chapter XXXIII of the Code. In Natwar Pardia & Others vs. The State of Orissa (1), the Apex Court of the country had an occasion to consider and interpret the proviso and it was held to be of mandatory character. The Court observed : — "But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy- murders, dacoities, robberies by their inter-state gangs or the like it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislation seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-section (5) of S. 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under S. 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a paradise for the criminals, but surely it would not be so, as sometimes it is supposed to be because of the courts. Such a law may be a paradise for the criminals, but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature." (9) In Bashir vs. The State of Haryana (2) the question was whether a person released under the proviso to S. 167 (2) could later be committed to custody after a charge-sheet was subsequently filed. The Court held that it could not be so committed to custody, but the bail could be cancelled under S. 437 (5), if the Court came to the conclusion that there was sufficient ground after the filing of the challan to believe that the accused had committed a non-bailable offence, and that it was necessary to arrest him and commit him to custody. The Court observed : — "Sub-section (5) to Section 437 is important. It provides that any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As under section 167 (2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under S. 437 (1) or (2). Sec. 437 (5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S. 437 (1) or (2) and these provisions are applicable to a person who has been released under Section 167 (2). Under S. 437 (2) when a person is released pending inquiry on the ground to believe that he has committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. Under S. 437 (2) when a person is released pending inquiry on the ground to believe that he has committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437 (1), (2) and (5) are applicable to a person who has been released under Section 167 (2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody." (10) In Raghubir Singh & Others vs. State of Bihar (3) the Supreme Court again considered and interpreted the proviso (a) to S. 167 (2) and the powers of the Court to cancel the bail. It was held as under: — "An order for release on bail made under the proviso to S. 167 (2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309 (2). The order for release on bail may however be cancelled under S. 437 (5) or Sec. 439 (2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or sworning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167 (2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed." (11) In Rajnikant Sivanlal Patel and another Vs. In the last mentioned case, one would expect very strong grounds indeed." (11) In Rajnikant Sivanlal Patel and another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi (4), the Apex Court of the country again reiterated that a Magistrate has no power to remand a person beyond a stipulated period of 90/60 days and he must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The Court further held that the accused, so released, cannot claim any special right to remain on bail, if the investigation reveals that he has committed a serious offence and the charge-sheet is filed. Paras 12 & 13 of the judgment are relevant, which are reproduced as under :— "12 An order for release on bail under proviso to S. 167 (2) may appropriately be termed as an order on default. Indeed it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right of bail under Section 167 (2) proviso (a) thereto is absolute. It is a legislative command and not Courts decision. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all, in fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds." "13 The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to S. 167 (2) could be cancelled." (12) In Central Bureau of Investigation Special Investigation Cell, New Delhi v. Anupam J. Kulkarni (5), the Apex Court again considered the scope of remand under S. 167, and the effect if the investigation is not completed within 90 or 60 days. It was held that the Magistrate under Sub-section (2) of S. 167 could authorise the detention of the accused in police custody or judicial custody, as he thinks fit, but it should not exceed 15 days on the whole. It was held that the Magistrate under Sub-section (2) of S. 167 could authorise the detention of the accused in police custody or judicial custody, as he thinks fit, but it should not exceed 15 days on the whole. It was also held that if an accused is detained in police custody, the maximum period during which he can be kept in such custody is only 15 days either pursuant to a single order or more than one, and further remand to facilitate the investigation can only be by detention of accused in judicial custody. The Court observed: — "Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days." (13) The Court also held that the proviso to S. 167 (2) lays down that the total period of detention should not exceed 90 days in cases where the investigation relates to serious offences mentioned therein, and 60 days in other cases, and if by that time cognizance is not taken on the expiry of the said periods, the accused shall be released on bail. (14) From the above discussion, the legal position about the remand of an accused during investigation and right of the accused to be released on bail if investigation is not completed within specified period can be summarised as under : — (1) If investigation is not completed in the first instance within 24 hours, the accused should be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in the custody beyond the said period without the authority of a Magistrate. (2) The Magistrate to whom the accused is forwarded may authorise the detention of the accused initially for a term not exceeding 15 days on the whole. This custody can be police custody or judicial custody. (2) The Magistrate to whom the accused is forwarded may authorise the detention of the accused initially for a term not exceeding 15 days on the whole. This custody can be police custody or judicial custody. In any case the maximum period during which an accused can be kept in police custody is 15 days either pursuant to a single order or more than one and further remand to facilitate the investigation can only be by detention of the accused in judicial custody. (3) Further remand under proviso to S. 167 (2) can be granted by a Magistrate if he is satisfied that adequate grounds exist for doing so, but the total period of detention should not exceed 90 days in cases where the investigation relates to serious offence mentioned therein and 60 days in other cases. (4) If investigation is not completed by the police during the above period of remand or cognizance is not taken the accused has to be released on bail, as a mandate of the Legislature and Magistrate has no option. (5) In case the accused is released on bail on account of the default of the investigating agency to file charge-sheet before the expiry of 90/60 days, the bail can be cancelled under S. 437 (5) after submission of the charge-sheet on various grounds including the ground that the accused has committed a non-bailable offence of serious nature and that it is necessary to arrest him for a fair trial. (6) If the accused for any reason is not released on bail under the proviso (a) to S. 167 (2) of the Code and the charge-sheet is filed and cognizance is taken after 90/60 days, i.e., the period mentioned in Sec. 167 (2) of the Code, the defect stands cured and the accused can not claim any special right to be released on bail if the investigation reveals that he has committed serious offence and his release on bail is likely to interfere with the due course of administration of justice. However, in such situation, the Court should bear in its mind that the accused had a right to be released on bail under the proviso (a) to S. 167 (2) of the Code as a legislative mandate and ordinarily he would not be deprived of the benefit of bail unless there are strong grounds for not releasing him. However, in such situation, the Court should bear in its mind that the accused had a right to be released on bail under the proviso (a) to S. 167 (2) of the Code as a legislative mandate and ordinarily he would not be deprived of the benefit of bail unless there are strong grounds for not releasing him. Such cases should be very few. (7) Now I take up the last question which is most important and vital for decision in the bail applications. (15) The NDPS Act is a special Act dealing with special class of crimes which is an international menace. In recent years, like other countries, India is also facing great problem of transit traffic in illicit drugs. In order to curb the cancerous growth of the use of such narcotics and its evil effect on the society right from a child, the Act was originally enacted in 1985. The legislature felt need to make comprehensive and stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, and to implement the provisions of International Conventions on such drugs and substances. The Act provided deterrent punishment for drug trafficking offences. Later on the Parliament further felt that still more stringent provisions were necessary to check the menace of drug addiction and illicit traffic of such substances. Hence the Act was amended by Act No. 2 to 1989. The object and reason behind passing the amendments were given as under: — "In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substance Act, 1985 provides the deterrent punishment for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faces in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen, it has been felt." (16) As stated earlier N.D.P.S. Act is a special Act which deals with special class of crimes to check the menace of drug addiction and illicit traffic in such substances. It provides deterrent punishments for the offences. It provides deterrent punishments for the offences. For most of the offences the punishment is not less than 10 years imprisonment but it may extend to 20 years with a sentence of fine not to be less than Rs. one lakh, but which may extend to Rs. 2 lakhs. Section 27-A provides deterrent punishment for financing illicit traffic and harbouring offenders in the same term. Enhanced punishment is provided under Sec. 31 and 31A if the offence is repeated by a person. Then Sec. 32-A provides that sentence awarded under this Act (other than Sec. 27) shall not be suspended or remitted or commuted. Sec. 36 provides for constitution of Special Courts. Sec. 36-A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate. Sub-sec. (b) of Section 36-A lays down that if the Magistrate to whom an accused is forwarded under S. 167, Cr.P.C., considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial. Then by Sec. 36-A (1) (c) the Special Court is empowered to exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate may exercise under Sec. 167 of the Code of Criminal Procedure. The Special Court takes cognizance of the crime just as a Magistrate does in respect of other cases under the Indian Penal Code. In other words, a Special Court under NDPS Act performs the same functions in relation to the offences under the NDPS Act, which a Magistrate performs in respect of the offences under the Indian Penal Code. A Special Court is, thus, not only a trial court but also the Court which exercises the functions similar to those of the Magistrate such as taking cognizance of the offence etc. Sub-sec. A Special Court is, thus, not only a trial court but also the Court which exercises the functions similar to those of the Magistrate such as taking cognizance of the offence etc. Sub-sec. (3) of Sec. 36-A and Sec. 37 are relevant which read thus: — "36-A (3): Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36." "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 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 Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail." (17) Section 36-A and Section 37 of NDPS Act have been substituted by the amending Act No. 2 of 1989. Section 37 starts with a non-obstant clause "notwithstanding anything contained in the Code of Criminal Procedure, 1973" The non-obstant clause operates in respect of all the provisions relating to bail as contained in the Code, so as to include the provisions of Section 167 taken as a whole. Section 36-A (1)(b) further makes it clear that a Magistrate has no power to grant bail at all and it is only the Special Court that can exercise the power under Sec. 37 of the Act in relation to an accused forwarded to the Court under Sec. 36-A (1) (b). Section 36-A (1)(b) further makes it clear that a Magistrate has no power to grant bail at all and it is only the Special Court that can exercise the power under Sec. 37 of the Act in relation to an accused forwarded to the Court under Sec. 36-A (1) (b). Section 37 was amended recently and it now provides that bail cannot be granted 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 the person is not guilty of such offence and that he is not likely to commit any offence while on bail. In other words, bail can be granted only if the above two limitations are satisfied. The operation of non-obstant clause makes it clear that whatever be the provisions of the Code of Criminal Procedure, an accused is not to be released on bail unless the conditions contained in Sec. 37 are satisfied. Then, Sub sec. (2) of Sec. 37 provides "the limitation of granting of bail specified in clause (b) of sub-sec. (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force of granting of a bail." Section 36-A and sec. 37 have come in existence from the same Amending Act (No. 2 of 1989), and if one reads these provisions together and particularly sub-sec. (2) thereof, it becomes clear that the proviso to sub-sec. (2) of Sec. 167 of the Code of Criminal Procedure will have no application in cases where a person is charged under any of the offence falling within the scope of the. NDPS Act. (18) It cannot be disputed that when there is special enactment in force relating to the manner of investigation, inquiry or otherwise dealing with such offences, the other powers under the Code of Criminal Procedure should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. (19) As already noted, Section 37 of NDPS Act starts with a non-obstant clause stating that "notwithstanding anything contained in the Code of Criminal Procedure, 1973" no person accused of an offence punishable for a term prescribed therein shall be released on bail unless the conditions contained in sub-sec. (b) (1) (ii) are satisfied. The power to grant bail under any of the provisions of the Code of Criminal Procedure including one under the proviso (a) to sub-sec. (2) of Sec. 167, should necessarily be subject to the conditions mentioned in Sec. 37 of the NDPS Act. (20) This matter can be judged from another angle also. The object of NDPS Act is to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc. The recent Amending Act No. 2 of 1989 was enacted with a solemn object to curtail and restrict the powers to grant bail as the Legislature felt that on technical grounds drug offenders were being released on bail. It is also noteworthy that Sec. 36-A and Sec. 37 have been substituted by the Amending Act which clearly demonstrates the legislative intent that whatsoever may be the provisions in the Code of Criminal Procedure, an offender of the offence under NDPS Act should not be released on bail unless the two conditions contained in Sec. 37 are satisfied. The underlying object of the Amending Act, and particularly when the provisions of Sec. 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C. regarding bail, it can be safely held that all provisions contained in the Code to grant bail are subject to the limitations mentioned in Sec. 37 of the NDPS Act. The non-obstant clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail of the Special Court and the High Court. (21) The argument of the learned counsel for the petitioner that under sub-Sec. (c) of Sec. 36A (1) of NDPS Act, the applicability of the proviso (a) to Sec. 167 (2) of the Code has been kept intact cannot be accepted for two reasons. Firstly, the expressions used in sub-sec. (21) The argument of the learned counsel for the petitioner that under sub-Sec. (c) of Sec. 36A (1) of NDPS Act, the applicability of the proviso (a) to Sec. 167 (2) of the Code has been kept intact cannot be accepted for two reasons. Firstly, the expressions used in sub-sec. (c) are "may exercise" and "same powers" and use of word "all" has been intentionally avoided. The legislative intent is made clear thereby that the provision is not meant to include within its ambit of powers which can be exercised by a Magistrate under Sec. 167. It also indicates that this provision is meant to be directory one and not mandatory. A similar argument raised before the Full Bench of M.P. High Court in Cr. Misc. Case No. 273/92 Ram Dayal vs. Central Narcotic Bureau, Gwalior decided on 3-9-92 (6) was negatived with the following observations: — "The argument attractive though, is too simplistic and naive. Not only the scheme of the Act, its object and language of the provision discredit the argument; the theory of referential incorporation is inherently fallacious. The "Special Court" functioning under the Act and the "Magistrate" functioning under Cr.P.C. have desperate powers and jurisdictions being creatures of two different statutes. The deeming provision contemplated under Sec. 36 A (1) (c) is meant to subserve a limited purpose; it is only a general and enabling provision and carries no mandate binding on the Magistrate in the manner Sec. 167 (2) proviso, does. The expressions used in it are "may exercise" and "same powers" use of the word "all" being carefully avoided and the word "same" being used instead, the legislative intent is made clear thereby that provision is not meant to include within its ambit all powers exercisable by a Magistrate under Section 167 including the power contemplated under the proviso to sub-sec. (2) and the use of the word "may" at the same time, is meant to impart to the power purely of discretionary character. The provision obviously is meant to be a directory one and not mandatory. (2) and the use of the word "may" at the same time, is meant to impart to the power purely of discretionary character. The provision obviously is meant to be a directory one and not mandatory. It is well settled that effect of a legal fiction cannot be extended justiciably and its scope is to be limited to the purpose it is meant to sub-serve." (22) Another limb of the argument of the learned counsel for the petitioners that the powers of High Court to grant bail under S. 439, Cr.P.C. are not restricted by Sec. 37 of NDPS Act in view of sub-sec. (3) of S. 36 A of the Act is also not acceptable. In this connection, the observations made by the Full Bench of Madhya Pradesh High Court in Ramdayals case (supra) may be reproduced :— . "The expression "nothing contained in this section" of S. 36-A (3) postulates that High Courts bail power is not to be deemed affected by anything contained in Section 36-A only; the fiction is not meant to be extended to Section 37 which is an independent provision contemplating expressly cladding of additional limitations" on bail powers when exercised in respect of a person who is in confinement after arrest under Section 52 of the Act. Clause (b) of Section 36-A (1) denying expressly in terms of its proviso to the Magistrate the power to take bail and limiting his jurisdiction to order detention for specified periods and thereafter for the accused produced before him" to be forwarded to the Special Court having jurisdiction" in terms of clause (c) the legislature could not have contemplated to vest that power in the Special Court and through it in the High Court in terms of sub-sec. (3). Legislature is supposed to enact sensibly and in any case it is courts duty to construe statutory provisions in such manner as to avoid conflict chaos and cavil. The common law maxim Ut resmagis valeat quam parent must inform judicial interpretative process. (3). Legislature is supposed to enact sensibly and in any case it is courts duty to construe statutory provisions in such manner as to avoid conflict chaos and cavil. The common law maxim Ut resmagis valeat quam parent must inform judicial interpretative process. See Rao Shiv Bahadur Singh (AIR 1953 SC 391), Gur Sahai ( AIR 1963 SC 1062 ) etc." (23) Similar view has been taken by Bombay High Court in Prahlad vs. State of Maharashtra (7), Calcutta High Court in Mabia Bibi vs. State of West Bengal (8), Orissa High Court in Banka Das vs. State of Orissa (9) and by this court in Jarin Khan vs. State of Rajasthan (10). (24) The Supreme Court in a recent judgment in Narcotic Central Bureau vs. Kishan Lal & Others (11) had an occasion to consider the scope of granting bail by the High Court and the effect of limitations placed in S. 37 of NDPS Act. The facts in that case were that the accused sought bail on the ground that the charge-sheet was filed at a belated stage and they were entitled to be released on bail as required under S. 167 (2), Cr.P.C, as well as on the ground of illness. The bail was granted by the D.B. of Delhi High Court holding that the limitations placed on the Special Court under Sec. 37 (2) of the NDPS Act cannot be read as fetters on the High Court in exercise of the powers under Sec. 439, Cr.PC for granting bail. After analysing the various provisions of NDPS Act, the Supreme Court has held as under: — "As already noted, Section 37 of the NDPS Act starts with a non-obstant clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of any offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr.P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act." It was further observed as under: — "For all the aforesaid reasons we hold that the powers of the High Court to grant bail under Sec. 439 are subject to the limitations contained in the amended Sec. 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly." (25) In my view the entire controversy has now been set at rest by the aforesaid decision of the Apex Court of the country in Kishan Lals case (supra). In that case the bail was sought from the High Court under Sec. 439, Cr. P.C. on the ground that the charge- sheet was not filed within the prescribed period under S. 167 (2) of the Code. Their Lordships of the Supreme Court in that context held that the powers of the High Court to grant bail u/s 439, Cr.P.C. are subject to the limitations contained in the amended section 37 of the NDPS Act and the restrictions placed on the powers of the Court in the said section are applicable to the High Court also in the matter of granting bail. I also do not agree with the contention of the learned counsel for the petitioners that in Kishan Lals case, the Supreme Court had no occasion to consider the right of the accused to be released on bail under Sec. 167 (2) proviso of Cr.P.C. (26) I may also discuss the two judgments on which the learned counsel for the petitioners have strongly placed reliance. The judgment in Rajnikant Shivlal Patel and Another vs. Intelligence Officer, Narcotic Central Bureau, New Delhi (supra) was rendered on the basis of the provisions of NDPS Act prior to Amending Act. No. 2 of 1989 and as such, there was no occasion for their Lordships to consider the applicability of Sec. 167 (2) proviso, Cr.P.C. in the light of Section 36-A and amended Section 37 of the Act. Therefore, this judgment cannot be of any assistance to the petitioners. (27) Another judgment relied upon is of Full Bench of Kerala High Court in Barlin Joseph @ Rani Vs. Therefore, this judgment cannot be of any assistance to the petitioners. (27) Another judgment relied upon is of Full Bench of Kerala High Court in Barlin Joseph @ Rani Vs. State (12). It is true that the matter for consideration before the Full Bench was whether the conditions in Sec. 37 of the NDPS Act for granting bail have over-riding effect to the proviso (a) to Sec. 167 (2), Cr.P.C, and the Full Bench has taken the view that Sec. 167 (2) would operate even for the offences under NDPS Act and Sec. 37 of the Act has no application. The Full Bench though has taken note of Kishan Lal as well as Rajnikants cases, but in my view these decisions have not received the consideration they deserve. The Full Bench of M.P. High Court in Rajnikants case (supra) has disagreed with the view expressed by Kerala High Court. The Kerala High Court in its judgment expressed its anxiety as under: — "If such an accused person can be released on bail, at the said stage, only on compliance with the stringent conditions contained in Sec. 37, practically no accused can be released on bail even after the said period of 60/90 days, unless he is set free, he will continue to remain in detention. But how long? Perhaps the police may take many months (if not years) to finalise the report. The accused will have to languish in custody without a trial like a "Pappilons" for considerably long period." (28) The M.P. High Court while considering the above anxiety expressed by the Kerala High Court observed as under :— "We entertain no such apprehension that a person accused of an offence under NDPS Act is led into a blind tunnel, even if in some cases he may have to pass through a long one when there is intervention of Interpol Cr. C.R.I. because of his supposed involvement in inter-State or International conspiracy. Merely because the pre-trial detention can be a long one in any particular case, the plain legislative intendment to the contrary cannot be judicially frustrated, in our view. As held in Amar Nath ( AIR 1972 SC 1548 ) the Courts are not concerned with the policy of the legislature or with the result, whether injurious or otherwise; to give effect to the language used in the Statute when the meaning is clear is the bounden . As held in Amar Nath ( AIR 1972 SC 1548 ) the Courts are not concerned with the policy of the legislature or with the result, whether injurious or otherwise; to give effect to the language used in the Statute when the meaning is clear is the bounden . duty of the Courts. We have noted, however, the global concern of increase in drug traffic crimes with international .........ramification and involvement of large doses of muscle or fire power and money power of which judicial notice is imparted by Art. 51 (a) of the Constitution." (29) I fully agree with the aforesaid view taken by the Full Bench of the M.P. High Court. It is, therefore, held that the provisions of S. 37 of NDPS Act over-ride S. 167 (2), Cr.P.C, and bail cannot be granted in cases registered under the Act, unless conditions contained in clause (i) and (ii) of S. 37 (1) (b) are satisfied. (30) Learned counsel for the petitioners also contended that there was serious irregularity and infirmity in search and seizure of the contraband articles, and mandatory provisions of the Act were not complied with by the concerned authority, as such, the petitioners deserve to be released on bail on this ground. According to the learned counsel, the possibility of acquittal ultimately for non compliance of the provisions resulting in infringement of procedural safe-guards meant to protect a person against fake accusation and frivolous charges should be considered by the Court independently in dealing with bail applications. In my view, an accused cannot be enlarged on bail on some alleged irregularity during investigation which is to be ultimately considered at the stage of trial. More so, in view of the stringent provisions in NDPS Act where the Legislature has been trying to eradicate the field which has been found to be cancerous. While considering the question of prima facie case, the irregularities on the part of the Investigating Agency cannot be of any avail though an accused is always at liberty to raise these points at the time of trial. The same view has been taken by the Bombay High Court in Prahlads case (supra), Kerala High Court in Mabia Bibi (supra) and M,P. High Court in Ram Dayals case (supra). The same view has been taken by the Bombay High Court in Prahlads case (supra), Kerala High Court in Mabia Bibi (supra) and M,P. High Court in Ram Dayals case (supra). In Ram Dayals case it was observed: — "We accept the proposition canvassed on the basis of judicial concensus and other salutory considerations bearing on the object and scheme of the Act that procedural lapses are not to be over played when prayer for bail is considered as that may hamper territorially extensive and forensically penetrating investigation which offences committed under the Act deserve." (31) Consequently, the above contention of the learned counsel for the petitioners is also rejected. (32) In the result, the bail applications are hereby dismissed.