A. R. TIWARI, J. ( 1 ) WHERE the accused shown to have been arrested as found in possession of opium but the arrest memo showing recovery of charas, and mandatory provisions of NDPS Act were not complied with and there were overwriting on dates and timings, it is proper case to grant bail. ( 2 ) THE applicant is arrested and detained in Crime No. 1/93 registered at P. S. Mhow pertaining to an offence punishable under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (For short Act) and by this application, seeks restoration of his liberty on appropriate bail-bond. ( 3 ) LIBERTY occupies a place of pride in a free country. Yet it must inevitably suffer an eclipse when it is found to be clashing with the interests of the society. The aforesaid Act is designed to combat the growing menace and as such, has drastic measures. Section 37 of the Act accordingly contains the constraints in matter of bail. ( 4 ) AS to the facts, it is enough to notice that the case-diary contains a memo of arrest reciting that the applicant was arrested on being found in possession of 27 grams of Charas (Cannabishemp); However, the case, destructive of this recital, speaks about the possession of opium. ( 5 ) IN the face of this incongruity, this Court required the presence of the author of the aforesaid memo. He appeared, but was unable to tear up the tenebrosity and simple sought shelter of the umbrella, conceiving it as protective, of the statement of bona fide error in preparation of the memo. ( 6 ) THE investigator, enmeshed in such an embroglio, opted to lend lip service, rather than life service, to the provisions of the law. In this surge of an urge, he preferred to be oblivious of the inbuilt safeguards associated with this. To begin at the beginning, it is apt to call in aid the Constitutional mandate imprimis. ( 7 ) ARTICLE 21 of the Constitution of India is the first safeguard available to a person. It lays down that: - No person shall be deprived of his life or personal liberty except according to procedure established by law. To begin at the beginning, it is apt to call in aid the Constitutional mandate imprimis. ( 7 ) ARTICLE 21 of the Constitution of India is the first safeguard available to a person. It lays down that: - No person shall be deprived of his life or personal liberty except according to procedure established by law. ' The other safeguard flowed from the mandate of Article 22 which provided that - No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. And enforcement of these rights, labelled as Fundamental, through appropriate proceedings is guaranteed by the Constitution. Securing sustenance on such a mandate, even Section 50 Cr. P. C. or Section 52 of the Act for that matter, imposed similar obligations. Now contrary to this, it is urged that the arrest-memo is not vitiated by any improbity, but suffered just an inadvertence. Law indisputably required communication of full particulars of the offence for which arrest was effected. The memo is thus, ex facie non-contexual and presents a picture which can easily be categorised as grotesque. A case, relating even to an intoxicant, is not supposed to yield any conundrum. It is well to remember the maxim fouler the crime, higher the proof. On lapse, the officer renders himself for action in terms of Section 59 of the Act. ( 8 ) I am aware of the fetters imposed by Section 37 of the Act. In fact, the Apex Court in Narcotics Control Bureau v. Kishan Lal, has succinctly clarified the position as under: Section 37, as amended, starts with a non-obstante clause stating that, notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. That being the underlying object and particularly when the provisions of Section 37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. That being the underlying object and particularly when the provisions of Section 37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P. C. regarding bail, in our view, if cannot be held that the High Courts powers to grant bail under, section 439 Cr. P. C. are not subject to the limitation mentioned under section 37 of NDPS Act. The non-obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439 Cr. P. C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4 Cr. P. C. may be noted. ( 9 ) THE principal question, however, is as to what should be the impact of recital of Charas and involvement on linchpin of Opium? And this assumed greater significance in the background of the submission that the accusation was manipulated; that the applicant, believed to be belonging to the banned organisation, was made captive on 31. 12. 1992 and a false case was foisted on him on 1. 1. 1993, as New Years gift, after due deliberation; and this design stood exploded as a myth by the aforesaid inconsistency. In passing, it may be noted that even by Government Advocate was unable to offer serious opposition in terms of Section 37 of the Act after perusal of the case diary and after noting the submissions that there were over-writings on dates and interpolations about timings. The intimations report, as noted, did not show the compliance of Section 50 of the Act. The stage of the case, however, demands silence in the interest of justice and comments, either way, would not be proper at the infancy of the case. So viewed, I refuse to go into the merits of the matter and say no more except that the conditions of Section 37 of the Act should be taken to be satisfied for the ad hoc purpose of anesthetizing the incarceration and ordering restoration of liberty on appropriate terms. To this extent, the case at this stage is not held to be irrecusable and is found to be fetter-free. There is no suggestion, not even a whisper, that there is likelihood of commission of offences in future on grant of bail. To this extent, the case at this stage is not held to be irrecusable and is found to be fetter-free. There is no suggestion, not even a whisper, that there is likelihood of commission of offences in future on grant of bail. ( 10 ) IN the circumstances, the argument of the State in oppugnation is surely svelte and consequently further detention is held to be subvertible. There is evidently a procedural lapse, may be for the limited purpose, provable as inconsequential at the trial, attracting the observation of Frankfurter J in the following wordshe that takes the procedural sword shall perish with the sword. ( 11 ) IN the analysis as aforesaid, this application for bail deserves to be allowed. It is accordingly allowed and it is directed the applicant shall be released on his furnishing a bail bond in a sum of Rs. 25,000/- (Twenty Five thousand rupees) with one surety in the like sum to the satisfaction of the ACJM Mhow for his appearance on all the dates as may be fixed by the Court concerned in this behalf. It is made clear that the prosecution shall be at liberty to apply for cancellation of bail, if the applicant is found indulging in the commission of any offence as provided by the aforesaid Act. C. C. today on payment of usual charges. Later on: The investigator Shri Rameshwar Nigam has submitted a written apology as noted in the aforesaid proceeding dated 1. 9. 1. 1993. He has again appeared personally and prayed that he be pardoned and the apology be accepted. He further assured that this shall not be repeated in future. To my mind, the apology deserves to be accepted. It is accordingly accepted and in view of this no further action is necessary. The apology be kept on record. Application allo wed. .