Judgment : By virtue of Secs.439 and 482, Crl.P.C, the Inspector of Central Excise, Customs Shore Guard Party, Kulasekarapatnam, prays for the cancellation of the bail granted by the learned Sessions Judge, Tuticorin in Crl.M.P.No.147 of 1992 dated 110. 1992 to the respondent herein for the alleged offence under Sec.8 read with Sec.21(1) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as N.D.P.S. Act). 2. The brief facts which led to the filing of this petition as culled out from the records of the court below are as follows: .3. On the night of 27/28. 1992, on intelligence, the petitioner along with his party were waiting in surveillance near the sea coast of Alanthalai. During the said sojourn, at about 03.00 a.m. on 28. 1992 an Ambassador car bearing registration No.TAT 999 was proceeding along the coastal road from Tiruchendur to Kanyakumari but was however stopped near the sea coast at Alanthalai followed by three persons therein got down with baggages placing on the ground by them. The next moment the car was surrounded by the petitioner and his party. However, two out of the three escaped under the darkness, but the respondent herein was apprehended in the presence of an independent witness and was followed by his interrogation. While doing so, on the spot, the respondent had stated that he had transported the 5 bags containing packages of opium from Tiruchendur to the place of apprehension at the instance of one Alphonse who had contacted him at Tiruchendur for transporting the said contraband to Alan thalai sea post with a view to illicitly export it to Srilanka by one Babu alias Badhusha who also travelled in the same car, but however they had a providential escape as stated above. When the said baggages were searched in the presence of independent witnesses, it was found to contain 47 packets of opium valued at Rs.2,35,000 locally and around Rs.50 lakhs in the international market which were seized under a mahazar and a copy of which has been given to the respondent hereinafter acknowledgment. Then the respondent was taken to the office of the Customs, Tuticorin, where the respondent gave a voluntary statement in his handwriting and that forms part of the records. Then the respondent was taken to the office of the Customs, Tuticorin, where the respondent gave a voluntary statement in his handwriting and that forms part of the records. Following these, since it was ascertained that the respondent had not only transported the contraband from Tiruchendur to Alanthalai in his Ambassador car for illicit export to Srilanka by Babu alias Badhusha the absconder and in this illicit transport, and he was also concerned along with Alphonse, the respondent was produced before the court and remanded to judicial custody by the learned Additional Chief Judicial Magistrate, Madurai. Before the court, the respondent had not made any allegation of ill-treatment or the statement had been obtained in duress, coercion or inducement except stating that it is a false case. 4. Subsequently, it appears that the said Alphonse was secured followed by the recording of the respondent’s statement. He was also produced before the court and remanded to judicial custody, but the third man Babu is still at large and yet to be secured. 5. In the meanwhile, a petition for bail under Sec.439 in Crl.M.P.No.l47of 1992 was filed on the file of the Sessions Judge at Tuticorin, but however it was objected to on behalf of the petitioner. In this context, it is seen from the records that the learned Sessions Judge on 110. 1992 has passed the impugned order enlarging the respondent on bail on his executing a personal bond for a sum of Rs.50,000 with two sureties for a total sum of Rs.1,00,000 and that during the bail period the respondent shall report to the petitioner’s office at 10 a.m. on every Monday in a week. Aggrieved at this order the petitioner herein has invoked the powers of this Court under Secs.439 and 482, Crl.P.C. and prayed for the cancellation of the same. 6. Mr.P.Rajamanickam, learned Standing Counsel for the petitioner, while canvassing the grievance of the petitioner, mainly pointed out that the learned Sessions Judge while passing the impugned order of bail to the respondent herein, has not at all adverted to his mind to the cognizance of the offence under the N.D.P.S. Act which was committed by the respondent attracting Sec.37 of the N.D.P.S. Act and that therefore, for the said reason alone the impugned order is liable to be transferred with and liable to be set aside forthwith. .7. .7. Secondly, the learned Standing Counsel for the petitioner, would contend that the learned Sessions Judge has released the respondent on the ground that he was remaining in prison for 45 days and even so, the investigation was not over and that further he was undergoing treatment as represented by his learned counsel and that as evident thereof, no opportunity was given to the petitioner to go through the materials pertaining to the treatment being meted out by the respondent and that so much so, relying the same without providing any opportunity to the petitioner, on being submitted in this Court clearly amounts to an arbitrary exercise of his power in the context the bail petition was being opposed very seriously before the court below and that therefore, the impugned order is liable to be set aside. 8. By controverting the same, Mr.B.Kumar, learned counsel appearing for the respondent, would contend that, firstly on satisfying the grounds available on the face of the records, since the learned Sessions Judge granted bail to the respondent as early as on 110. 8. By controverting the same, Mr.B.Kumar, learned counsel appearing for the respondent, would contend that, firstly on satisfying the grounds available on the face of the records, since the learned Sessions Judge granted bail to the respondent as early as on 110. 1992 in the impugned order by imposing the necessary conditions and that inasmuch as all the conditions have since been fully complied with by him till today and that no allegation or grievance that the conditions imposed have not been complied with or violated by the respondent till today, there cannot be any valid ground made available to the petitioner to seek the cancellation of the bail granted already and that secondly, the ground relief on by the learned Sessions Judge that the respondent is a permanent resident of that locality with having a permanent residence, lands and avocation and undergoing treatment in the Government Hospital and not likely to abscond or tamper or hamper the investigation or the prosecution case, the learned Sessions Judge was perfectly right in granting the bail; and that thirdly, the so-called voluntary statement given by the co-accused Alphonse has not since been pertains to the direct overt-act of the respondent herein it is admittedly disbelievable that the petitioner could have involved himself in the offence under the N.D.P.S. Act, but however all the more he has given lift to known person by name Alphonse along with his luggage in his car while he was returning from Tiruchendur to his native place after worshipping the deity and therefore, the learned Sessions Judge has rightly exercised his discretionary power under Sec.439, Crl.P.C and as such the relief claimed by the petitioner cannot be granted. 9. In the light of the above rival contentions, the only point that arises for consideration is whether the impugned order passed by the learned Sessions Judge in Crl.M.P.No.147 of 1992 dated 110. 1992 is vitiated with any illegality or impropriety and if so, it is liable to be set aside. .10. I have carefully perused the contents of the impugned order as above referred. It is seen from the impugned order that the learned Sessions Judge has referred to the fact that the respondent is injudicial custody since 28.8 1992. 1992 is vitiated with any illegality or impropriety and if so, it is liable to be set aside. .10. I have carefully perused the contents of the impugned order as above referred. It is seen from the impugned order that the learned Sessions Judge has referred to the fact that the respondent is injudicial custody since 28.8 1992. It has to be noted at this stage that the voluntary statement alleged to have been recorded from the respondent has to be looked into for any purpose as it does not hit by Sec.25 of the Evidence Act. If that is so, enough for me to say for this limited purpose that the respondent is clearly within the ambit of the offences provided under the N.D.P.S. Act. But, however, it is seen from the finding of the learned Sessions Judge that from 28. 1992 the respondent has been taking treatment from the Tirunelveli Medical College Hospital. From the date of arreston28. 1992 till 110. 1992 for more than 45 days the fact that the investigation has not been completed by the petitioner, it appears that it has been taken as one of the grounds by the learned Sessions Judge. Added to that, the learned Sessions Judge has accepted the arguments that were advanced on behalf of the respondent that he had lands to the extent of 40 acres and had a good status in the society and that if he was released on bail, he would not hamper the prosecution or the trial. By doing so, the learned Sessions Judge has granted bail to the respondent. 11. Thus, it is seen that the circumstances referred to above, namely and presumably, the respondent was in judicial custody for a period of 45 days and he has been taking treatment in the Tirunelveli Medical College Hospital was relied on by the learned Sessions Judge to grant bail to him for the offence under the N.D.P.S. Act and no other ground was identified or pointed out by the learned Sessions Judge. 12. If this is the position, then I may straightaway observe that I have no other alternative, except to say that the learned Sessions Judge has totally overlooked the legal norms, provisions of law and the various rulings held by the High Courts as well as the Apex Court of our country. 12. If this is the position, then I may straightaway observe that I have no other alternative, except to say that the learned Sessions Judge has totally overlooked the legal norms, provisions of law and the various rulings held by the High Courts as well as the Apex Court of our country. With the result, I find that there is much force in the arguments advanced by Mr.P.Rajamanickam, learned Standing Counsel for the petitioner. Sec.439 of the Code provides an identical power to the Sessions Judge and the High Court Judge to grant bail, for the offences which are non-bailable as codified. But however, it is seen that this power has been totally fettered by the provisions of Sec.37 of the N.D.P.S. Act. It was the consonance of the several High Courts that the power vested under Sec.439 of the Code of Criminal Procedure is restricted and limited by Sec.37 of the N.D.P.S. Act, which is a special enactment made by the Legislature with a view to regulate and curtail the increase in menace by the operations of drug trafficking by the Drug-lords and King-pins not only in this country but in the whole world. In this regard, it has become very pertinent to quote the declaration of the law, held by the Supreme Court in Narcotics Control Bureau v. Kishan Lal, 1991L. W. (Crl.) 53, which are extracted as hereunder: "The N.D.P.S. Act is a special enactment and 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 Sec.37 of the N.D.P.S. Act are in negative terms limiting the scope of the applicability of the provisions of Crl.P.C. regarding bail, in our view, it cannot be held that the High Court’s powers to grant bail under Sec.439, Crl.P.C. are not subject to the limitation mentioned under Sec.37of N.D.P.S. Act. It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offence, the other powers under Crl.P.C. should be subject to such special enactment. In interpreting the scope of such a situate the dominant purpose underlying the statute has to be borne in mind. It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offence, the other powers under Crl.P.C. should be subject to such special enactment. In interpreting the scope of such a situate the dominant purpose underlying the statute has to be borne in mind. Sec.37 of the N.D.P.S. Act 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 are satisfied. Consequently, the power to grant bail under any of the provisions of the Crl.P.C, should necessarily be subject to the conditions mentioned in Sec.376 of the N.D.P.S. Act. The power of the High Court to grant under Sec.439 are subject to the limitations contained in the amended Sec.37 of the N.D.P.S. 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." 13. In this regard, it is useful to refer Sec.37 of the N.D.P.S. Act which runs as follows: "37. Offences to be cognizable and non-bailable: (1)Notwithstandinganythingcontained 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 him 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 guilty of such offence and that he is not likely to commit any offence while on bail. .(2) The limitations on the granting of bail specified in Clause (b) of Sub-scc.(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". 14. .(2) The limitations on the granting of bail specified in Clause (b) of Sub-scc.(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". 14. In Sundaresan alias Meganathan alias Mega v. State represented by Inspector of Police, etc., 1993 L.W. (Crl.) 371, a Division Bench of this Court also held the view that the non-compliance of mandatory provisions inbuilt in various provisions of the N.D.P.S. Act by the investigating agency whoever it might be, alone can be considered by the court while exercising the power in granting the bail under Sec.439 of the Code irrespective of the total embargo provided under Sec.37 of the N.D.P.S. Act fettering the power of the High Court, keeping in view of the object and purpose of the N.D.P.S. Act. It is thus seen from the above position of law, enunciated by the Apex Court as well as this Court, in the above case law, it is made clear that a total embargo and restriction was placed on the court to grant bail under Sec.439 of the Code of Criminal Procedure though available in Sec.37 of the Narcotic Drugs and Psychotropic Substances Act, the non-compliance of the mandatory directions inbuilt in the various provisions of the Act can be considered while exercising the power of granting bail under Sec.439 of the Code and except that, on no other ground whether extraneous or sentimental, it is made clear that bail cannot be granted for an accused under the N.D.P.S. Act. 15. Since the legal position has been settled by this Court as well as the Apex Court in this regard, empowering the High Court or the Court of Sessions to exercise the discretionary power under Sec.439of the Code, though identical its powers to do so has been totally restricted. In the context of the said legal position, if we weigh and consider the impugned order, it is manifestly clear that the legal norms and the law declared by the Apex Court as well as this Court have been totally overlooked and bypassed by the learned Sessions Judge in passing the impugned order. In the context of the said legal position, if we weigh and consider the impugned order, it is manifestly clear that the legal norms and the law declared by the Apex Court as well as this Court have been totally overlooked and bypassed by the learned Sessions Judge in passing the impugned order. It is not known under what context of the procedural law, the remaining of the petitioner injudicial custody for a period of 45 days, for an offence committed under the N.D.P.S. Act, will entitle him to be enlarged on bail as observed by the learned Sessions Judge. That apart, even with regard to the circumstance, perhaps pertaining to the treatment being taken by the respondent in the Tirunelveli Medical College Hospital, there is no piece of paper or material placed before the court with regard to the details, nature and the relevant dates of his ailment and the subsequent treatment to be taken for any consideration. Above all, it has to be noted that the petitioner had filed written objections to the bail application and it was opposed on behalf of the prosecution. Even then the learned Sessions Judge has not adhered to the provisions of law provided under Scc.37(1)(b) of the N.D.P.S. Act as above referred and gave a negative finding with reference to the availability of a prima facie case in favour of the respondent-accused. In this context, particularly in the ab-senceof any medical certificate or an iota of material placed before the court below with regard to the ailment and its corresponding treatment in the hospital, I have no hesitation to hold that holding the said medical treatment as one of the grounds to grant bail by the learned Sessions Judge is totally incorrect and not proper in any respectable view. It is not known, from who and where from and on what documents, the learned Sessions Judge has arrived at the said conclusion and even if there are documents, then it must be the duty of the learned Sessions Judge to hear the objections from the opposite side with regard to the said documentary evidence. But unfortunately all the abovesaid facts are totally missing this case. Therefore, under the circumstances, I fully endorse my view that there is every force in the contentions raised by Mr.P.Rajamanickam, learned Standing Counsel for the petitioner. 16. But unfortunately all the abovesaid facts are totally missing this case. Therefore, under the circumstances, I fully endorse my view that there is every force in the contentions raised by Mr.P.Rajamanickam, learned Standing Counsel for the petitioner. 16. Mr.B.Kumar, learned counsel appearing for the respondent, drew my attention to a decision of the Apex Court in State (through Deputy Commissioner of Police, Special Branch), Delhi v. Jaspal Singh Gill, 1984 Crl.L.J. 1211, in which the Apex Court has held as follows: “The court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced would take into consideration various matters such as the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable pos-sibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other consideration.” Placing reliance upon the decision of the Apex Court cited above, learned counsel for the respondent submits that the learned Sessions Judge considered every aspects and the pros and cons of the case on par with the ratio laid by the Supreme Court and that therefore, nothing can be attributed against the impugned order passed by the learned Sessions Judge. But for the reasonings given by me supra, on the basis of the view held by the Apex Court as well as by this Court, in the above case law, I am at every difficulty to countenance the view of the learned counsel above referred, for the simple reason that the learned Sessions Judge while passing the impugned order has not only failed to couch the legal norms and ratios declared by the higher courts of the country, but also has not even adverted to the law enacted in this regard. 17. The law laid down by the Apex Court in Narcotics Control Bureau v. Kishan Lal, 1991 L.W. (Crl.) 53, would provide a clear answer for the matter in this regard as well as for the contentions raised by the learned counsel for the respondent. For the said reason, I have not proposed to do another exercise by probing the said matter once again. For the said reason, I have not proposed to do another exercise by probing the said matter once again. Therefore, the legal ratios held by the various High Courts and the Apex Court under Secs.437 and 439 of the Code of Criminal Procedure are not applicable insofar as the offences under the N.D.P.S. Act are concerned for the simple reason that Sec.37 (1)(b) of the N.D.P.S. Act is a procedure enacted by the Amending Act of the N.D.P.S. Act which is also a legislative command and the courts cannot controvert or bypass the same by substituting its meaning or interpretation. 18. For the said reason alone it is to be held that the case cited by the learned counsel for the respondent will not render any assistance or help to the respondent herein. 19. It is thus, after having considered every legal gamut and ratios enunciated by the Apex Court as well as this Court and other High Courts in very many cases and particularly in the context of the view held by this Court in an unreported judgment in Crl.O.P.No.8973 of 1993, dated 17th September, 1993. I am satisfied to hold that the impugned order passed by the learned Sessions Judge, granting bail to the respondent herein is vitiated with every illegality and impropriety and to pass the said order, the learned Sessions Judge has no jurisdiction at all and as such it is liable to be set aside immediately. 20. Before parting with the case, it has become necessary for me to observe that, of late, the ten-dency of granting bail to persons who are indulged in smuggling and trafficking the narcotic drugs and psychotropic substances, at the behest of Drugs-lord and King-pins, are being increased and they are allowed to go on bail by the courts of law to the utter disregard of the judicial norms enunciated by the High Courts as well as the Apex Court and more particularly, the stringent provisions passed in the enactment which in my considered view is highly reprehensible, but certainly to be restricted and contained, but certainly to be restricted and contained, if, properly attended to. it is also a disturbing feature that the provisions of law, the legal norms specifically and clearly declared by the higher courts of this land in implementing the procedural privilege for the persons-accused in the offences under the N.D.P.S. Act has been totally overlooked and by-passed especially by the subordinate courts. If this position is allowed to continue, I am afraid that whatever be the stringent law and the implementing agency formed, there will be no use and would not render any fruitful result, but would, on the other hand cause an onslaught upon the welfare and on the very-structure of the society in its-larger interests. In this background, I am not able to reconcile myself with the observations made by the learned Sessions Judge in the impugned order. Therefore, it is liable to be set aside at the outset. 21. In the result, for all the abovesaid reasoning, this petition succeeds and the impugned order in Crl.M.P.No.147 of 1992 dated 110. 1992 passed by the learned Sessions Judge. Tuticorin, is hereby set aside. Bailbonds executed by the respondent and on his behalf are hereby cancelled. Consequently, the respondent is directed to surrender before the learned Sessions Judge, immediately for judicial custody. If not, the petitioner is permitted to take appropriate steps to arrest the respondent for judicial custody without any delay. Accordingly, this petition is allowed.