JUDGMENT - M.S. RANE, J.:---Issues of utmost importance and considerable significance in the context of power of the High Court and for that matter even of the Special Court, to grant bail to the accused arrested under the provisions of Narcotic Drug and Psychotropic Substances, Act, 1985 (in short NDPS Act) pending trial have been raised in this group of applications. The issues raised have compounded their resolution in view of particular views already taken by the Single Benches of this Court. The learned Public Prosecutor appearing for the State has made a strong plea for reference to the Division Bench, pleading and urging that the issues were not presented before the Court, who have disposed to adopt particular view, in their proper perspective. In as much as, it is asserted that the vital and relevant statutory provisions were not at all considered and argued before the Court in those decided matters. It is also contended that the judicial trend as reflected in the decisions of the Apex Court as also the larger Benches of other High Courts in this country, directly having bearing on the issues agitated, were not highlighted, and pointed out when previous matters were argued. In as much as, it is submitted that adopting the particular way of view in the matter of grant of bail in respect of offences registered under NDPS Act, as done in these decided cases, go directly counter to the main thrush and object of the NDPS Act and would frustrate the very aim and object it is meant to achieve. 2. The point of issue is as under. The applicants in this group of application have been arrested under various provisions of NDPS Act. It will be noticed from the title of this Judgment that in all these applications, in every case, the number of accused are more than one. In each case the prosecution has filed a single report before the Special NDPS Court as required under section 173 of the Criminal Procedure Code, although the report in each case mentions searches and seizures effected under NDPS Act at different places and at different times as also different places of apprehensions of each accused. (Emphasis supplied.) It is this factor which has been the centre of controversy at issue. (Emphasis supplied.) It is this factor which has been the centre of controversy at issue. In as much as, on behalf of the applicants, it is submitted with all seriousness that such course of filing one common charge-sheet by the prosecution in respect of separate and distinct searches and seizures, in each case herein, amounts to "misjoinder of charges." (again emphasis supplied) and that statute mandates viz. section 218 of the Code of Criminal Procedure that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. This having not been done, there is breach and non-compliance of statutory mandate, fatal to the prosecution and prejudicial to the accused/applicants. 3. The applicants counsel refer to and place reliance upon the decisions rendered earlier each sitting singly by my brother Judges I.G. Shah, M.F. Saldhana and of mine (i.e. Rane, J.,) in the cases where facts and circumstances, as far as joinder of different offences in the common report filed in each case under section 173 of the Criminal Procedure Code before the Special NDPS Court, were the same, and wherein order of the release of the accused involved in the respective cases were passed. It is however relevant to note that Saldhana, J., and myself granted bails in those cases, following ratio of Shah, J., without considering the merits in the context of section 37 of the NDPS Act. 4. It is, therefore, necessary to know precisely the view taken in this respect in the earlier decisions. I. I.G. SHAH, J.:---My said brother Judge has in certain matters taken the similar view which is the earliest in time accepting mis-joinder of offences/charges as fatal to the prosecution and granting bail in these cases. Detailed and elaborate discussion is to be noticed in the case of (Mohd. Ali Mohd. Umar Bhatkar v. State of Maharashtra)1, in Criminal Application No. 3606 of 1992 delivered by him on 4th December, 1992 (Unreported) in para 4 he puts in as follows:- "4. Reliance is also placed by the learned A.P.P. on the provisions of Criminal Procedure Code to contend that even if such a trial is held jointly, unless prejudice is shown the trial would not be vitiated. The argument is fallacious. Reliance is also placed by the learned A.P.P. on the provisions of Criminal Procedure Code to contend that even if such a trial is held jointly, unless prejudice is shown the trial would not be vitiated. The argument is fallacious. If it is pointed out at this stage itself that such a trial is not permissible according to the provisions of section 218 of Criminal Procedure Code and inspite of that if it is insisted upon to have a joint trial, the prejudice would be apparent. It does not lie in the mouth of the prosecution to contend that it is to be decided at the time of the trial. When the said position of law is pointed out at the initial stage, it is the duty of the prosecution to act according to the provisions of law and not insist upon a joint trial. If they do so, they take the result. Hence if the present applicant is to be tried together, as sought to be done by the prosecution, with accused Nos. 1 to 6, the trial would be vitiated as it would be contrary to the provisions of section 218 of Criminal Procedure Code and in that event the applicant necessarily would be required to be acquitted and therefore he would not be found guilty of the offence with which he is charged and therefore if the applicant is not likely to be found guilty he can be released on bail, even after taking into consideration section 37 of the NDPS Act." It is not necessary to refer to other decisions of my said brother taking the similar view as the same proceeds on the similar reasonings. II. M.F. SALDHANA, J.:---In the case of (Khalid Kasam Shaikh v. The State of Maharashtra)2, Reported in 1994(1) Bom.C.R. at page 1 and decided on 4th August, 1993, my brother Judge Saldhana expressed his disapproval to the above view of Shah, J., observing his discordant note as : "2. When these matters were argued before me, learned Counsel contended that the point is concluded and that their clients are entitled to bail. To my mind, a decision in a bail application, even if it is a reasoned decision, is strictly confined to the facts of that case alone and does not create any precedent, leave alone a binding precedent. When these matters were argued before me, learned Counsel contended that the point is concluded and that their clients are entitled to bail. To my mind, a decision in a bail application, even if it is a reasoned decision, is strictly confined to the facts of that case alone and does not create any precedent, leave alone a binding precedent. The Court of co-ordinate jurisdiction will, undoubtedly, regard and respect that decision, but there may be circumstances in which deeper, wider or different considerations prevail, in which case another view was possible. Considering the fact, however, that one Court has taken a view that favours the accused, that this is an interim application and that the accused are in custody, I had granted bail in these cases, though I considered it essential to record that henceforward that reasoning may not hold good. 3. The question of whether a defective charge vitiates a trial can only be argued after such a charge is framed and after it is demonstrated that the charge was so defective that it, in fact, sets at naught the entire trial. For this purpose, a detailed examination of the entire prosecution case is necessary which is an exercise that is normally undertaken at the post-trial or appellate stage or, in any event, after the charge has been framed. At the stage of framing a charge, the learned trial Judge will apply his mind to the facts of the case and it is open to him to exclude or include those facts or instances as are permissible under the Code of Criminal Procedure, 1973. When the prosecution alleges a case of conspiracy, common intention or abatment and where the instances are so interconnected in point of time with each other as to render a joint trial permissible, it could never be argued that merely because of the time-frame involved in the arrest or in the seizure that separate trials are a must. It is perfectly permissible to have a joint trial in many instances and it is, therefore, for the trial Court to resolve this issue. 5. One cannot lose sight of the most important aspect of the case, namely, the basic requirement of law under the Narcotic Drugs and Psychotropic Substances Act, which is to the effect that it is the involvement of the accused in an offence punishable under that Act which is the solitary consideration. 5. One cannot lose sight of the most important aspect of the case, namely, the basic requirement of law under the Narcotic Drugs and Psychotropic Substances Act, which is to the effect that it is the involvement of the accused in an offence punishable under that Act which is the solitary consideration. If the facts justify that there is material to disclose such involvement then the provisions of section 37 of the Narcotic Drugs and Psychotropic Substances Act will apply and bail would, normally have to be rejected. The Inflamitire, if any, that can be anticipated at the time of the trial are something hypothetical and are, therefore, not something of which the Court can take cognizance in advance because this would be a highly speculative approach which is hardly permissible. On a perusal of the orders passed by Shah, J., it is clear that all these aspects and angles, both factual and legal, were not canvassed before the learned trial Judge and, therefore, the Court had no occasion to consider them. These, however, to my mind, are angles of utmost relevance and ones which necessarily require to be looked into. 6. I have indicated at the commencement of this order that I have granted bail in these cases only because of the submission that they are covered by the earlier orders which had taken a particular view. Since the position is now clarified, it is open to the prosecution to apply for appropriate orders in these cases, if the facts to justify." III. Rane, J.:---i.e. myself. In Criminal Application No. 469 of 1994 decided on 9th March, 1994. The said bail application was allowed following the earlier views, referred to at I and II above, observing in para 4 as under : "4. The Judicial discipline and comity requires that said precedent should be followed as long as the said Judgment exists." 5. It is thought necessary to clarify at this stage itself that I did not consider the merits of the said matter, but following decision of my brother Judge Shah, granted the bail, with above observations. The Judicial discipline and comity requires that said precedent should be followed as long as the said Judgment exists." 5. It is thought necessary to clarify at this stage itself that I did not consider the merits of the said matter, but following decision of my brother Judge Shah, granted the bail, with above observations. However, between the views as expressed by Shah, J. and Saldhana, J., as far as this Court (i.e. Rane, J.,) is concerned, I respectfully concur with the views as expressed by Saldanha, J., and with great respect do not agree with that of brother Shah, J. Therefore, although I am referring the issues to the Division Bench for consideration, in view of conflicting views as above, nevertheless, I feel it appropriate to express my own views and reasoning on the issue. 6. The learned P.P. Mr. Lambay has referred to the various provisions of the NDPS Act as well as Criminal Procedure Code and pointed out that the question of considering section 218 of Criminal Procedure Code at the stage of grant of bail would and should not arise since express charges are to be framed and formulated at and just at the commencement of the trial by the Court itself and therefore there is no question of vitiation of the trial so as to be fatal to the prosecution or causing any prejudice to the accused when prosecution forwards the police report under section 173 of Criminal Procedure Code. He submits that stage where the matters, concerning the accused in these applications, presently stand are only the filing or submission of the reports as contemplated under section 173 of the Criminal Procedure Code by the prosecution before the Court and it is for the Court to frame the charges when the stage of trial reaches and Court has power to order separation of trial of different offences if facts and circumstances of the particular case so require. He points out by referring to section 464 of Criminal Procedure Code that even at the appellate stage the appeal Court is empowered to correct the charges, considering it as mere irregularity and not illegality. He points out by referring to section 464 of Criminal Procedure Code that even at the appellate stage the appeal Court is empowered to correct the charges, considering it as mere irregularity and not illegality. He pleads that adequate safeguards are provided in the Criminal Procedure Code to the accused to ensure that no prejudice is caused to him at and during the trial and this being the position, at the stage of consideration of bail applications, the Court should not, in particular, in the offences arising under NDPS Act and specific provisions with regard to the bail thereunder, launch into detailed inquiry and any procedural lapse should not be allowed to be overplayed. 7. In order to appreciate the submission put forth by the learned P.P. it would be necessary to advert to relevant statutory provisions. i)(a) NDPS Act : It is a special enactment. The offences in the application herein have been registered thereunder. As various sections of the said Act provide, the provisions of Criminal Procedure Code are made applicable, subject to the limitations, prescribed by the NDPS Act, to the offences registered under this Act. Especially in the matters relating to the manner of investigation, inquiry, searches and seizures arrest and production of the accused before the Magistrate, submission of the report, procedure of trial etc. the provision of Criminal Procedure Code are applicable for dealing with the offences. In fact sub-section (2) of section 4 of Criminal Procedure Code so expressly provide, which runs : Section 4(2). All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." (b) Since we are concerned in the applications herein for the reliefs of grant of bail, the said NDPS Act makes a special provisions in that respect-section 36-A(1)(b) and (3) are relevant which run : "36A(1)(b). Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate : (3) Nothing contained in this section shall be deemed to effect 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." Thus section 36-A, which is an amendment effected in the year 1989, enumerates the offences triable by the Special Courts and also the procedure regarding the detention of the accused when produced before the Magistrate. Sub-section (1)(b) empowers the Magistrate to order detention of produced person for a period of 15 days and then forward to the Special Court and sub-section (3) saves the power of the High Court under section 439 of the Criminal Procedure Code regarding bail even in respect of offences under NDPS Act. (c) The next most important provision under this Act is that as contained in section 37, which is concerning power to grant bail. The said section runs as under: "37. Offence 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 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 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-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." The plain reading of the above section 37 clearly shows that the said section is sole repository of the bail power, whether of the "Special Court" or of the High Court. I would only reproduce what the Supreme Court has laid down while construing and interpreting the said section 37 in its Judgment in the case of (Narcotic Control Bureau v. Kishan Lal others)3, reported in A.I.R. 1991, S.C. p. 558. Para 6 sets down the law luminiously. "6. 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 relating to Narcotic Drugs and Psychotropic substances. That being the underlying object and particularly when the provisions of section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Criminal Procedure Code regarding bail, in our view, it cannot be held that the High Courts powers to grant bail under section 439, Criminal Procedure Code 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, Criminal Procedure Code and section 37 of the NDPS Act, section 37 prevails." "As already noted, section 37 of the NDPS 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 Criminal Procedure Code should necessarily be subject to the conditions mentioned in section 37 of the NDPS Act." (d) I may add that various High Courts have rendered numerous decisions on the power of the Courts to grant bail under section 37 of the said NDPS Act, including our Court, reference of which, in view of decision of the Apex Court in Kishanlals case (supra) is not necessary. However, usefully I may refer to the Full Bench decision of Madhya Pradesh High Court in the case of (Ram Dayal v. Central Narcotic Bureau)4, reported in 1993 Criminal L.J., p. 1443, directly on the point of grant of bail. The Full Bench held that procedural lapses, such as 162(2) Criminal Procedure Code of delayed submission of charge-sheet and non-compliance of provisions of section 50 of NDPS Act, relating to search, alone are not grounds for grant of bail if case is not brought under the four corners of section 37 of NDPS Act. Similar view has also been adopted by the Full Bench of Orissa High Court in the case of (Banka Das and others v. State of Orissa)5, 1993 Cri.L.J 442 which was in the context of right of the accused to claim release on bail under the provisions of section 167(2) in default of filing of charge-sheet within the stipulated period under the statute. The Full Bench has laid down that such statutory provisions such as section 167(2) of Criminal Procedure Code would not afford sufficient ground to grant bail. ii) Criminal Procedure Code---(a) As stated earlier, in the matters of investigations, interrogations, arrest searches, conduct of trial provisions of Criminal Procedure Code so far not inconsistent with the NDPS Act are applicable. In the issues in hand as raised in these applications the same directly concern to the "charges" and "misjoinder" thereof. ii) Criminal Procedure Code---(a) As stated earlier, in the matters of investigations, interrogations, arrest searches, conduct of trial provisions of Criminal Procedure Code so far not inconsistent with the NDPS Act are applicable. In the issues in hand as raised in these applications the same directly concern to the "charges" and "misjoinder" thereof. Section 2(b) defines charge as : "2(b) "charge" includes any head of charge when the charge contains more heads than one;" Section 2(r) runs as : "2(r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173." It is to be noted that the applicants have, to bring home the ground of misjoinder of offences, have relied upon and have based the said ground upon the charge-sheet submitted by the prosecution before the Court as provided under section 173 of Criminal Procedure Code. It is most important to note that section 173 of Criminal Procedure Code nowhere mentions "charge" or even "charge-sheet" although it is commonly termed as a charge sheet, but only speaks of "report". This aspect of distinction will be elaborated later on. (b) Section 173 Criminal Procedure Code-This section requires to forward a "police report" to a concerned Magistrate in a prescribed form accompanying the relevant record pertaining to the investigation. (c) Chapter XVII containing section 211 to 224 entitled as "The Charges". Sections 211 to 214 speak of contents, particular manner of committing of offence, wording of charges describing an offence by specific provision of law, etc. Section 215 is to be noted which is in following terms : "215. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." Section 216 empowers Court to alter a charges : (d) Then next is section 218 to which we are most concerned, which provides : "218. (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately : Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223." This, section stipulates that for every distinct offence, there should be a separate charge, making exception specified in sections 219, 220, 221 and 223. (e) Then the next most crucial and important provisions as far as charge is concerned is that contained in Chapter XIX of Criminal Procedure Code of which section 240 and 246 are relevant. The heading of the Chapter is "Trial of warrant-cases by Magistrate," and it is to be noted that the undisputedly offences against the applicants are triable as warrant cases. Section 240 and 246 read as : "240. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2)The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence or claims to be tried." (Underline supplied) "246. (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (3) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged." (Underline Supplied.) (f) The next in the context of relevant provision is as contained in section 464 of the Criminal Procedure Code which is in the following terms : "464. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned it may-(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit; (Provided that if the Court is of the opinion that facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." (g) Provisions as contained in sections 240 and 246 quoted above, abundantly make explicit that the framing the charge in the Criminal Case is the mandatory duty of the Court trying the offence. The underlined portions of said provisions leave no manner of doubt about the said imperative provisions of the law casting duty and sole responsibility upon the Court regarding framing of the charges against the accused. It is true that the Court while so doing will have to refer to the "Police Report" produced before him then proceed to frame charges as provided in the above provisions. What is more, even any error or omission occurs, in the process of framing charges, then further safeguard is provided in section 464 of Criminal Procedure Code quoted above, while the Appellate Court can set at right the matter. The findings are not invalidated because of such error or omission unless there being failure of justice occasioned and so established. 8. In the instant cases, the applicants are seeking to take refuge under section 218 of Criminal Procedure Code relying on the Police Report submitted under section 173 of Criminal Procedure Code before the Special Court. It needs to be made explicit and clear that the "Police Report" or the "charge sheet" as it is called normally is not comparable to the process of framing of the charge which is the task and responsibility of the Court as such. In the instant cases, the stage of framing the charges has not yet reached. It needs to be made explicit and clear that the "Police Report" or the "charge sheet" as it is called normally is not comparable to the process of framing of the charge which is the task and responsibility of the Court as such. In the instant cases, the stage of framing the charges has not yet reached. At the proper time and stage, when the Special Court would take up the matters concerning the applicants herein for trial, he would have to follow the procedure under the statute noticed earlier, while framing charges against the applicants and the applicants would also get an opportunity to have their say in the process of framing charges against them. There are adequate safeguards provided and available to them which ensure to avoid any prejudice to the accused. 9. From the conspectus of above discussion, it clearly emerges that simply because in the police report forwarded by the prosecution under section 173 of Criminal Procedure Code they are clubbing different offences, which may be distinct, as it is asserted, is no ground to be made as justifying one for grant of bail, in view of sufficient safeguards available and in particular, the stage of framing the charges has not reached as yet, and further, the framing of the charges is the sole duty and responsibility of the Court itself. 10. The next factor which would militate to let out the accused involved in the offence under NDPS Act is that such offences are considered to be most grave as being menace to the society as such. In the year 1989, when NDPS Act was amended, making bail provisions stringent, the statement of objects and reasons behind it read : "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 Substances Act, 1985 provides for deterrant punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offender were being released on bail. The Narcotic Drugs and Psychotropic Substances Act, 1985 provides for deterrant punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offender were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to the further strengthen it, has been felt." One would also note how the Apex Court in the back-ground of the said provisions as contained in section 37 of NDPS Act after amendment of 1989, has also construed and interpreted the power of the Court regarding bail existing in Criminal Procedure Code, in Kishanlals case (supra) the relevant extract reproduced herein-above. It is clearly held in the said decision that the power of the High Court to grant bail under section 439 are subject to the limitation contained in the amended section 37 of the NDPS Act and the restrictions placed on the powers of the High Court under the said section are applicable to the High Court also in the matter of granting bail. 11. It is also necessary to notice the provisions as contained in section 29 of the NDPS Act, which provides that the abetment and conspiracy to commit an offence under the NDPS Act is also liable to the punishment. Clause (2) thereof makes abetment or criminal conspiracy committed even outside India punishable which show the serious gravemen with which the offences under the said Act are viewed. The applicants in these group of applications are also sought to be indicted under the offence under the said section also. Ultimately it would require to be considered by the Court at the stage of framing charges and during the trial whether different searches and seizures effected constituted or not the series of transactions of the conspiracy. Again that would have to be gone into and considered at the stage of framing of the charges and during the course of the trial and not at the stage of consideration of bail applications. 12. I respectfully differ with a view as my brother Judge I.G. Shah has disposed to take in the matters mentioned earlier. 13. Again that would have to be gone into and considered at the stage of framing of the charges and during the course of the trial and not at the stage of consideration of bail applications. 12. I respectfully differ with a view as my brother Judge I.G. Shah has disposed to take in the matters mentioned earlier. 13. In the circumstances, I am of the considered view that in the light of two different and conflicting views, as mentioned and discussed above, the reference to the Division Bench for resolution is felt necessary. Points of reference are : (i) If prosecution files one common police report/charge-sheet for various offences, under the provisions of NDPS Act, involving section 29 of the said Act as provided under section 173 of Criminal Procedure Code, covering searches and seizures at different times and places, and involving more than one accused, before the Special Court constituted under the NDPS Act 1985, whether the same would be misjoinder of charges for being entitled to the accused to get bail as of right ? (ii) Whether power of High Court under section 439 to grant bail is subject to limitations contained in section 37 of NDPS Act in respect of offences registered under NDPS Act. 14. In the circumstances the above applications stand adjourned till the decision of the reference by the Division Bench. 15. Since the reference arises in the Bail applications, it will be open to the parties to seek appropriate directions for its expeditious disposal. *****