Judgment : The Intelligence Officer, Narcotics Control Bureau, South Zone, Madras-17 who is the petitioner in all the three cases was the respondent before the court below and filed these petitions under Sec.439 of the Code of Criminal Procedure, seeking the cancellation of the bail granted by the Learned Principal Sessions Judge to the respondents in the above three cases in Crl.M.P.No.2662 of 1993, dated 16. 1993, Crl.M.P.No.2995 of 1993, dated 30.6.1993 and Crl.M.P.No.3376 of 1993, dated 17. 1993. 2. The petitioner in all the three cases is one and the same. But however, the respondents in these cases are different. The said three cases arise out of one common occurrence in which all the three respondents are involved, though separate orders were passed by the learned Sessions Judge and against which the above three different petitions were filed. Since the questions to be decided in all the three cases are common, I have proposed to dispose the same by pronouncing a common order accordingly. 3. The brief facts which led to the filing of these petitions under Secs.439 and 482 of the Code of Criminal Procedure may be stated as follows: On information, the officers of the Narcotic Control Bureau, South Zone, Madras, the petitioner herein spotted the three respondents herein who came to the private vehicle parking slot at the Central Railway Station on 25. 1993, and when they were about to start their Maruti Van, bearing Registration No TN-04A-8266, intercepted by disclosing their identity and the purpose for which they intend to check the inmates. The respondents in the three cases were identified. On enquiry, it came to know that Packiaraja and kumar, the respondents in Crl.O.P.Nos.8817 and 8948 of 1933 were returning from New Delhi by Tamil Nadu Express and the respondent in Crl.O.P.No.7452 of 1993 came to the station to pick up the abovesaid persons in the vehicle above referred to. The respondent by name Govindasamy stated further that he is the brother-in-law of the respondent in Crl.O.P.No.8817 of 1993 by name Packiaraja and the other respondent was his associate accompanied him during the journey. The staff of the petitioner then examined the multi-coloured bag which was in the hands of Jayakumar, the respondent in the third case before the witnesses. On opening, it was noticed that certain used clothes together with one rose coloured mattress were found packed in a polythene cover. The staff of the petitioner then examined the multi-coloured bag which was in the hands of Jayakumar, the respondent in the third case before the witnesses. On opening, it was noticed that certain used clothes together with one rose coloured mattress were found packed in a polythene cover. On a closer examination it was noticed that it was a bed spread with 2 pillow covers flowers embroided on it. On opening the same, the Officers noticed a polythene cover placed inside with a brown coloured substance along with a railway ticket showing the destination from Delhi to Jhansi and subsequently extended till Madras, from the bag. Then the officers examined the cement coloured zipper bag which was found in the possession of Packiaraja, the respondent in Crl.O.P.No.8817 of 1993. They found some old used personal clothing along with a bundle wrapped in a Tamil Newspaper which was tied by a violet polythene thread and on opening they found bundle of 100 rupee denominations of notes to the extent of Rs.One lakh. After testing the brown powder and recording the answers for the substance of herein, the three respondents along with the van with the witnesses who were present were brought to their office at T.Nagar for further examination as the place of interception was not conducive to proceed further in accordance with the procedural law. Then it was found as the brown sugar weighed about 500 gms. and accordingly it was seized along with the currency of Rs.1,00,000 with certain incriminating documents from the dash board of the said Maruti van under the mahazar, in the presence of witnesses attested, followed by two representative samples of 5 gms., approximately were drawn from the said brown substances for chemical analysis. The voluntary statements given by the said three respondents were then recorded by the petitioners staff under Sec.67 of the Narcotic Drugs and Psychotropic Substances Act, admitting their respective guilt. Consequently, they were arrested on 25. 1993 and remanded to judicial custody. 4. It is thus, accordingly the case is being investigated by the staff of the petitioners in accordance with the procedural law. 5. Consequently, they were arrested on 25. 1993 and remanded to judicial custody. 4. It is thus, accordingly the case is being investigated by the staff of the petitioners in accordance with the procedural law. 5. From the voluntary statements given by the three respondents inter alia states that the respondent in the first case has been working as a driver to his sister’s husband by name T. Packiaraja, the respondent in the second case, on a monthly salary of Rs.2,000 that he was employed for the purpose for carrying the persons and goods, that during his employment, he had the occasion to meet kumar, Gani, etc. who were supposed to be the friends of Packiaraja, that they used to meet and talk about smuggling of narcotic drugs for some time in the past; that during the first week of May, 1993, one Chinnadurai, a Sri Lanka, contacted very often, that the said Chinnadurai was staying at Merdeka Lodge, Mannadi, Madras, that he was also a smuggler of narcotic drugs, that on 5. 1993, Packiaraja asked him to go with him to meet Chinnadurai for the purpose of procuring the narcotic drug from Delhi, that at 9.00 a.m. on that day, he went to the said lodge along with Packiaraja in his Maruti Van and met Chinnadurai, that after the meeting, they decided to go to Delhi on the same night, that while they were returning home, Packiaraja informed that Chinnadurai and himself were going to Delhi by Tamil Nadu Express, that he would contact the respondent over phone from Delhi, that on 15. 1993 morning Packiaraja contacted him over phone and asked him to contact one Indiran, a Sri Lankan, who was staying at Merdeka Lodge and to receive Rs.40,000 from him and to 2hand over the money to Kumar instructing him to go to Delhi by Tamil Nadu Express on that night itself, that the said kumar, is also known as Jayakumar, that Packiaraja would meet the said kumar near Veena Lodge, near Imperial theatre at Paharghanj at Delhi, that he contacted Kumar at Ramachandran Lodge over phone and asked him to come to Central Railway Station, near the telephone booth at 8.30 p.m. and asked him to come prepared to go to Delhi, that he went to Merdeka lodge and met the, said Indiran and asked him the money which was told by Packiaraja, that Indiran gave a sum of Rs.40,000, that on that night at 8.30 p.m. he met the said Kumar at Central Station, handed over Rs.40,000 and asked him to hand over the same to Packiaraja at Delhi, that on 21st, Packiaraja contacted him from Delhi over phone and stated that he will be coming to Madras on 25. 1993 by Tamil Nadu Express and asked him to bring Maruti Van to the station,, that Packiaraja informed him that he met Kumar at Delhi, purchased narcotic drug through Kumar and he would be bringing the drug on 25. 1993 along with Packiaraja by Tamil Nadu Express, that accordingly he went to the Central Station in the Van at about 7.30 a.m., that Packiaraja and Kumar came by Tamil Nadu Express, that he received them and took them to the Maruti van, that when they were about to leave the Central Station in their Maruti Van the officers intercepted the vehicle and searched in the presence of mahazar witnesses, that the officers seized 500 gms, of heroin from Kumar and Rs.1,00,000 from Packiaraja and some documents from the said Maruti Van, and that the said Packiaraja had assured him to pay more money for assisting him in dealing with narcotic drug. 6. Similar statements were also given voluntarily by the respondents in the two subsequent cases substantiating the very statements made by the respondent in the first case. For the above said reason, I do not propose to traverse the very contents of the respective statements given by Packiaraja and Jayakumar in detail. 6. Similar statements were also given voluntarily by the respondents in the two subsequent cases substantiating the very statements made by the respondent in the first case. For the above said reason, I do not propose to traverse the very contents of the respective statements given by Packiaraja and Jayakumar in detail. On the basis of the said statements and recovery, the respondents were arrested after informing them to their arrest, later produced before the Court and consequently remanded to judicial custody. But however, during the said sojourn neither of the respondents had any complaint of any ill-treatment, coercion or so at the hands of the officers of the petitioner or their involuntary procurement of the statements from them. Thus, on the same day, the respondents were remanded to judicial custody. 7. Then respective petitions were filed before the learned Principal Sessions Judge, on behalf of the respondents, praying for the release of the respondents on bail. But however, a counter was filed on behalf of the petitioner objecting to the grant of bail by contending inter alia in detail that the role played by the accused in the illicit transaction, since relates to the heroin seized in the case and the respondents were knowingly concerned in the illegal transaction as referred to above and the role was to transport the heroin knowing that it was heroin and transporting the same having been brought by the respondents in subsequent two cases and the respondent in the first case joined and that all the three had actually taken charge of the said substance followed by the apprehension of them by the officers concerned. Thus, facing the charge one under Secs.8(c), 21 and 29 of the N.D.P.S.Act. 8. While extracting so, it is useful for me to refer the specific case of the respondents is that the respondent in the first case was not found in personal possession of heroin at the time of apprehension and that he has not admitted that he was in possession of the said heroin nor was having Indian Currency to the tune of Rs.1,00,000. But on the other hand, the specific case of the petitioners is that heroin to the quantity of 500 gms. was found in possession of the respondent in the third case and the currency to the extent of Rs.1,00,000 was found in possession of the respondent in the second case. 9. But on the other hand, the specific case of the petitioners is that heroin to the quantity of 500 gms. was found in possession of the respondent in the third case and the currency to the extent of Rs.1,00,000 was found in possession of the respondent in the second case. 9. After having heard the arguments of both sides, in the context of the pleas and objections taken on behalf of the respective parties, the learned Principal Sessions Judge has allowed the petitions and consequently granted the bail to all three respondents by the respective impugned orders passed as above referred to and accordingly enlarged the three respondents on bail on the respective plates. Aggrieved at this, particularly with reference to the illegality and impropriety under which the respective impugned orders were passed by the learned Principal Sessions Judge, the petitioner has come forward with the above three criminal original petitions with a view to interfere with the said impugned orders and consequently to set aside the same as aforestated. .10. Mr.P. Rajamanickam, the learned Central Government Public Prosecutor appearing for the petitioner in all the three cases by reading the very observations made by the Principal Sessions Judge in the impugned order dwells his main attack while canvassing this petition on the ground that the learned Sessions Judge while granting the bail has virtually failed to find any non-compliance of the mandatory provisions of the N.D.P.S. Act, in the context that the petitioner namely the intelligence Officer, Narcotic Control Bureau, South Zone, Madras is not a police at all so as to follow the procedures laid down under the Code at Criminal Procedure, but however, they are separate and independent Investigating Agency empowered to investigate various offences under the N.D.P.S. Act by following the procedures specifically laid down for them; and that further in the absence at non-compliance of any mandatory provisions, the response is not entitled to get the bail under Sec.439 of the Code as per the settled principle of, judicial view and that thirdly the Learned Principal Sessions Judge has totally overlooked the very object and preamble of the various provisions of N.D.P.S. Act, particularly with reference to Sec37 of the Act which deals with the scope for granting bail for the accused for the offences under the N.D.P.S. Act. The learned counsel further contends that the very reasoning given by the learned principal Sessions Judge while granting the bail to the respondents herein cannot be sustained even for a single minute for the reason of its illegality and not provided anywhere in the enactment or the case law. For the said reasons, mainly it was contended that the impugned orders granting bail by the court below ought not have granted the bail and that therefore the said impugned orders are to be interfered with by setting aside the same. .11. Per contra, Mr.Sambamurthy, the learned counsel appearing for all the respondents in the three cases strenuously persuaded before me by contending that firstly on the day of occurrence when the three respondents were first intercepted, the officers of the petitioners before checking the persons of the respondents and their vehicle failed to disclose their identity as well as not provided any opportunity to them to make the search of their persons before any Gazetted Officers or the nearest Magistrate, the non-compliances of which would clearly land the petitioner for the concept of the noncompliance of the mandatory provisions of Sec.50 of the N.D.P.S. Act; And that secondly, taking the respondents to the officer of the petitioners situate at T.Nagar and seizing the contraband under the cover of mahazar would perfectly not be in compliance with Sec.52-A shows that the Narcotic Control Bureau, an Investigating Agency, has not followed the procedure mandatorily held to be followed in law and that therefore as per the decided case laws by various High Courts the above non-compliance clearly leads to a prima facie conclusion that the respondents have not committed the offences as alleged and that therefore they were entitled to the bail. In this regard the learned counsel would contend that rigour of Sec.37 of the N.D.P.S. Act would not in any way fetter the power of the Court to exercise its jurisdiction under Sec.439 of the Code, that as such the learned Principal Sessions Judge in granting the bail to the respondents herein was perfectly and well within the ambit of the legal concept and province and that therefore the present petitions filed bear no merits at all. 12. 12. In the light of the above rival contention the only point which arises for consideration is whether the impugned orders passed by the learned Principal Sessions Judge in all the three cases are vitiated with any illegality or impropriety and if so are they liable to be set aside? 13.The point: In the impugned order passed by the learned principal Sessions Judge in Crl.M.P.No. 2662 of 1993, dated 16. 1993 involving the first respondent C.Govindasamy is concerned it is seen that it is not the case of the petitioner that the narcotic drug or Psychotropic substance namely the heroin to the quantity of 500 gms. was found in the possession of this respondent and accordingly it was seized from him under the cover of mahazar. So also, so far as the currency of 100 rupee denomination to the extent of Rs.1,00,000 is concerned, the relevant person from whom it was recovered under the cover of mahazar is the respondent in the second case and not the respondent in the first case. Further, it has to be noted that it was the specific case of the petitioner that the respondent in the first case being happened to be the brother-in-law of the respondent in the second case and an employee actually aided and facilitated the other two respondents in the commission of the offences of one under Secs.8(c), 21 and 27 of the N.D.P.S. Act for the facts above referred to in detail as culled out from the voluntary statements recorded from each of the respondents herein. If this is so, at the outset, I may observe that the learned Sessions Judge has not even applied his mind to the real facts involved in this case and that was the reason why he mistook the fact that the contraband was recovered from the possession of the respondent in the first case instead of the respondent in the third case. Therefore, a full force was identified in the arguments advanced by Mr.Rajamanickam, the learned Standing Counsel for the petitioner that while granting the bail the learned Principal Sessions Judge has not even applied his mind to the Teal facts and averments made available. 14. Therefore, a full force was identified in the arguments advanced by Mr.Rajamanickam, the learned Standing Counsel for the petitioner that while granting the bail the learned Principal Sessions Judge has not even applied his mind to the Teal facts and averments made available. 14. Coming to the question whether the procedural direction provided to be mandatorily followed in Secs.50, 52-A and 55 of the N.D.P.S. Act has been followed in this case by the petitioner or not, I have to advert the copy of the seizure mahazar prepared by the petitioners as well as attested by the independent witnesses. From the very reading of the seizure mahazar and its very contents it is found that the moment the said three accused were spotted in the van and were about to start in the said vehicle it was intercepted by the petitioner and immediately there were told by the intercepting officers as who they were, for what purpose they intercepted and what they were going to do. In this regard it is seen that on the very interception of the van and the three respondents by the petitioner’s staff, the respondents were informed that the persons and vehicle are going to be checked for the purpose of any offence under the N.D.P.S. Act or otherwise. If that was the position, then, as was clearly mandatory in Sec.50 of the N.D.P.S. Act, the respondents ought to have required the petitioner in so unambiguous words that their persons ought to be searched or checked before the Gazetted Officer or the nearest magistrate for any reason and that accordingly the option provided in the Act ought to have been exercised by the respondents and certainly not by the petitioner. In this regard, particularly in the context of the very contents of the seizure mahazar, I am not in a position to accept the first contention of the learned counsel for the respondents that Sec.50 of the N.D.P.S. Act has not been complied with on factual aspects. On the other hand, it has been fully complied with. It cliches further that no mandatory direction has been violated while intercepting and making the search of the three respondents in this case. With regard to the legal aspects, in view of the decision rendered by this Court in Crl.O.P.No.10826 of 1993 dated 29. On the other hand, it has been fully complied with. It cliches further that no mandatory direction has been violated while intercepting and making the search of the three respondents in this case. With regard to the legal aspects, in view of the decision rendered by this Court in Crl.O.P.No.10826 of 1993 dated 29. 1993, the contention that searching officer shall inform the accused to exercise their option as to whether they require their persons to be searched in front of the Gazetted Officers or the nearest Magistrate or not is not a mandatory direction and that therefore it is not at all possible to hold that the requiring of the accused to exercise their option that as to whether they are required to be searched in front of a Gazetted Officer or nearest Magistrate is not a legal mandate which causes the noncompliances of or violation of the mandatory provisions. Therefore, for the abovesaid reasons, I am totally unable to persuade myself to accept the first contention advanced by the learned counsel for the respondents. 15. Coming to the subsequent contentions made on behalf of the respondents, a careful perusal of the seizure mahazar and the remand report cliches the matter in detail, to the effect that the petitioners and their staff had clearly followed all the procedural directions built in Secs.50, 52-A, 53, 53-A and 55 so also sending the report to immediate superior within the time stipulated and so on. In this regard, it has become useful to refer the decision rendered by this Court in the above unreported judgment which deals with the scope and ambit of the concept of search distinguishing from the recovery and seizure since both words were seem to be synonymous in nature, but distinguishable with each other and totally distinct with reference to its actual meaning. I have already decided that a search is totally different from the seizure and both cannot be taken as one concept in so far as the investigation to be conducted by the investigating agency. 16. I have already decided that a search is totally different from the seizure and both cannot be taken as one concept in so far as the investigation to be conducted by the investigating agency. 16. To say the patent of (sic.) sampling of contraband taken by the petitioner is provided under the Special Rules framed by the Government of India pursuant to the relevant provisions of the N.D.P.S. Act, it has to be noted that the object of providing the Special Rules is only meant for the different investigating agencies clearly empowered to investigate the offences under the N.D.P.S. Act except the police. Insofar as the regular Police is concerned, there cannot be any difficulty in holding that the Police Investigating Agencies are bound to follow the procedure laid down in the various provisions of Code of Criminal Procedure and Criminal Rules of Practice. But however, the petitioner in this case is the Narcotic Control Bureau, a Special Investigating Agency, has been clearly empowered to Investigate the offences under the Act and that therefore it is not proper to expect them to follow the procedure laid down under the Code of Criminal Procedure by skipping over the provisions contained in the N.D.P.S. Act for the purpose of investigation. If that being so, then taking of the samples and keeping them under safe custody as has been clearly revealed from the seizure mahazar and the remand report clinches the fact the none of the provisions of the N.D.P.S. Act has been violated on behalf of the petitioner insofar as the offences of these respondents are concerned. 17. If the procedural directions built in various provisions of the N.D.P.S. Act are found to have been followed in this case, in the absence of any non-compliance of the same for which no material is available, then the rigor of Sec. 37 of the N.D.P.S. Act as laid down in the Narcotic Control Bureau v. Kishan Lal, 1991 L.W. (Crl.) 53, by the Supreme Court cannot be avoided for any reasons and the respondents in these three cases are clearly in the teeth of Sec.37 of the N.D.P.S. Act. It would make it clear further that the powers of the High Court under Sec.439 of the Code has been clearly fettered by virtue of Sec.37 of the N.D.P.S. Act. It would make it clear further that the powers of the High Court under Sec.439 of the Code has been clearly fettered by virtue of Sec.37 of the N.D.P.S. Act. It that is the position, then I find no difficulty at all in holding that the respective impugned orders passed by the learned Principal Sessions Judge in granting bail to all the three respondents are without any jurisdiction and as such the same are vitiated with every illegality and impropriety and as such liable to be set aside. The very reasonings given by the Learned Principal Sessions Judge in granting the bail of the respondents in these case are not contemplated by any law procedural or otherwise or the case law, though various case laws have been cited by the Principal Sessions Judge, the same are not helpful to the respondents in availing the procedural Privilege of bail contemplated under Sec.439 of the Code. 18. Thus having considered every contentions urged on behalf of the petitioners and having perused the respective impugned orders in the light of the above factual and legal aspects, I am fully convinced to hold that all the three impugned orders passed by the learned Principal Sessions Judge are liable to be interfered with and set aside. Even so, it is seen that the learned Principal Sessions Judge has not followed the mandate and the procedure contemplated under Sec.37 of the N.D.P.S. Act as was held by the Supreme Court in the above referred citation. The Public Prosecutor ought to have been given the notice while hearing the petitions seeking for the bail and his objections must have been noted down and considered in full. In the instant case it is seen that the learned Standing Counsel appearing for the petitioner has filed a detailed written statement raising every many legal pleas inter alia aforestated and none of the said pleas has been considered or even adverted by the learned Principal Sessions Judge. On this ground alone the impugned orders passed are liable to be set aside. Further, the condition required to be provided, in case, even if the bail is granted, has not been followed and exercised by the learned Principal Sessions Judge, which in my respectful view, is not proper and correct in the eye of law. 19. On this ground alone the impugned orders passed are liable to be set aside. Further, the condition required to be provided, in case, even if the bail is granted, has not been followed and exercised by the learned Principal Sessions Judge, which in my respectful view, is not proper and correct in the eye of law. 19. Mr.Sambamurthy, learned counsel appearing on behalf of the respondents has cited number of case laws in support of his contentions mainly for the reason that in considering an application seeking to cancel the bail granted already, the relevant allegations, of non-compliances of the conditions imposed by the court which granted the bail are necessarily to be established and that in the absence of the same, the learned counsel would contend, in such a case, no bail granted already is to be cancelled. After going through all the case laws cited by the learned counsel, I have noticed that the said case laws do not render any help or assistance to the learned counsel for the respondents for the simple reason that all the decided case laws are only for the offences that come under the first category of Sec.4 of the Code of Criminal Procedure and not under the second category of the Code. In this regard, it has to be noted that the offences falling under the various Sec.4 of the N.D.P.S. Act are of a special category to be dealt with stringiest punishment and made with a view to regulate the trafficking of the narcotic drugs and psychotropic substances which is a continuing menace to the entire civilized society of the world and that was the reason why stringent punishment is provided by the legislature and that in this regard the said object cannot be overlooked or treated so likely. None of the case laws have emerged out with regard to the scope of Sec.37 of the N.D.P.S. Act which curtails the power of this court under Sec.439 of the Code. None of the case laws have emerged out with regard to the scope of Sec.37 of the N.D.P.S. Act which curtails the power of this court under Sec.439 of the Code. Therefore, in view of the ruling of the Apex Court held in Narcotic Control Bureau v. Kishan Lal, 1991 L.W. (Crl.) 53, for the reasons aforestated, the respondents in these three cases clearly landed in the teeth and rigour of Sec.37 of the N.D.P.S. Act and overlooking the same the impugned orders passed by the learned Principal Sessions Judge, as aforestated in these three cases are clearly illegal and erroneous, vitiated with every impropriety and for the said reasons, I have no hesitation to set aside the same. With great constraint and respect to the learned counsel for the respondents, I am in a position to accept any of his contentions projected behalf of the respondents, but on the other hand, after having fully considered the entire legal gamut and factual aspects in this case, I fully endorse my view with the contentions advanced by Mr.Rajamanic-kam, learned Standing Counsel for the petitioner. 20. In the result, for the reasons stated above, the petitions in Crl.O.P.Nos.7452, 8817 and 8984 of 1993, succeed and stand allowed. The impugned orders passed in Crl.M.P.Nos.2662 of 1993, dated 16. 1993, Crl.M.P.No.2995 of 1993, dated 30.6.1993, and Crl.M.P.No.3376 of 1993, dated 17. 1993, by the learned Principal Sessions Judge are hereby set aside. Consequently each of the respondent is hereby directed to surrender before the court immediately. Bail bonds, if any, executed by them are hereby cancelled. If each of the respondent fails to surrender, the petitioner is directed to move the court and take appropriate steps to secure them immediately to the judicial custody. All the three petitions are ordered accordingly.