Judgment : This petition is filed for grant of bail under Sec. 439 of Criminal Procedure Code. The petitioner along with two others is alleged to have committed an offence under Sec. 20 (b)(1) of Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as N.D.P.S. Act. The petitioner in his bail petition has averred as follows: “The petitioner is the second accused in Crime No. 515 of 1994 of the Chinnamannoor Police Station, for the offence under Sec. 20(b)(1) of N.D.P.S. Act. In that he has been implicated by the first accused Maharajan, as the person who escaped, along with the third accused Gurusamy, driver of the Ambassador car MDA.3767 which was halted and checked by the police party at Iyampatti Village about 5 kilometres from the Chinnamannoor Police Station at about 9.00p.m. on 110. 1994 and found to contain several packets containing in all about 241.400 kg. of ganja. The police came with the first accused to the residence of the petitioner at Bodi on the morning of 110. 1994 and as the petitioner was attending to his poultry business in the town, the police took away the younger brother Sugumar, who was a civil engineer doing private contract work. Upon hearing this, the petitioner with his father Mokkasamy went and appeared at the Chinnamannoor Police Station on the evening of 16,10.1994 and even though he declared his innocence, he was taken to custody and produced before the Magistrate at his residence and remanded to 15 days custody in the Sub Jail, Uthampalayam. The petitioner moved for bail before the learned Special Sessions and District Judge, Madurai, which was dismissed by order in court in Crl.M.P.No. 2343 of 1994 on 210. 1994. Hence the petitioner moves this petition for bail.” 2. The bail petition is opposed by the learned Public Prosecutor, under Sec. 37 of N.D.P.S. Act, learned counsel for the petitioner submitted that the petitioner is innocent and not at all involved in the alleged offence, under Sec. 20(b)(i) of N.D.P.S. Act and he has been falsely implicated by the first accused. The first accused is a habitual dealer in ganja business on a very large scale. He further submitted that at the time of the alleged occurrence, viz., on 110. 1994 at 9.00 p.m. the petitioner was not at the spot. The petitioner was having his poultry business and that on 110. The first accused is a habitual dealer in ganja business on a very large scale. He further submitted that at the time of the alleged occurrence, viz., on 110. 1994 at 9.00 p.m. the petitioner was not at the spot. The petitioner was having his poultry business and that on 110. 1994 he was in his hometown engaging in his usual business. In support of the same, petitioner has filed affidavits of the local people as the only available mode to prove the same. 3. Mr.A.A. Selvam, learned counsel for the petitioner submitted that Sec. 37 of N.D.P.S. Act is not an absolute bar for the grant of bail. In support of the said contention, he cited the ruling of Gauhati High Court, reported in Mrs. Kheiirun Bibi v. State of Manipur, 1994 Crl.L.J. 236 (NOC.), wherein, it is observed as follows: “Sec. 37 does not provide absolute bar to grant of bail: It cannot also be rejected merely on the ground that some materials have been found against accused.” He further submitted that once an objection is taken by the Public Prosecutor for grant of bail, it is always open to the petitioner to adduce evidence in support of the contention that the petitioner is not guilty of the offence and is not likely to commit any offence while on bail. In this connection, Mr.A.A. Selvam, the learned counsel for the petitioner submitted that the power to grant bail is a judicial power. A grant of bail is in exercise of judicial power and the proceedings for grant of bail is a judicial proceeding. Learned counsel referred to Sec. 2(i) of the Criminal Procedure Code which defines Judicial Proceeding as follows. "2(i) Judicial proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath." In support of the said contention, the learned counsel referred to a ruling in Kamalapati v. State of West Bengal, 1970 Crl.L.J. 679 at 693, wherein the Supreme Court observed as follows: "There is nothing in the context in which the word, court is used in these two sections and Sec. 195 which would provide an indication that it has been used in two different senses therein, and in such a situation, the legislature must be deemed to have used it in one and the same sense wherever it occurs in the Code. While deciding the question of bail, therefore, a Magistrate must be held to be acting as a court and not in any other capacity, irrespective of the stage which the case has reached by then, that is, whether it is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate. It at once follows that the taking cognizance of any offence by a Magistrate under Sec. 190 of the Code is not a condition precedent for him to be regarded as a court." He also referred to a ruling reported in State of Maharashtra v. S.K. Bannu, 1981 M.L.J. (Crl.) 166: 1980 Crl.L.J. 1280, wherein it was observed by the Supreme Court as follows: "While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a court, the proceedings in the bail application being judicial proceedings." He further referred to the ruling in Hussainara Khatoon v. Home Secretary, State of Bihar, 1980 M.L.J. (Crl.) 76: 1979 Crl.L.J. 1036, wherein the Supreme Court catalogued the considerations for grant of bail which pertain mainly to his roots in the community, as follows: "To determine whether the accused has his roots in the community which would deter him from fleeing, the court should take into account the following factors concerning the accused. 1. the length of his residence in the community, 2. his employment status, history and his financial condition, 3. his family ties and relationships, 4. his reputation, character and monetary condition, 5. his prior criminal record including any record of prior release on recognizance or on bail, 6. the identity of responsible members of the community who would vouch for his reliability, 7. the nature of the offence charged and the apparent probability of conviction and the likely sentence insofar as these factors are relevant to the risk of non-appearance, and 8. any other factors indicating me ties of the accused to the community or bearing on the risk of wilful failure to appear." Learned counsel for the petitioner further cited the following decision reported in State of Maharashtra v. Anand Chintaman Dighe, 1990 M.L.J. (Crl.) 43, wherein the Supreme Court has observed as follows: "There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the court. Where the offence is of serious nature the court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable apprehension of witness being tampered with in the large interest of the public or such similar other considerations." Learned counsel further referred the following decision reported in Usmanbhai Dawoodbhai Menon v. State of Gujarat, 1988 M.L.J. (Crl.) 588, wherein the Supreme Court, while considering the bail application under Sec. 439, Crl.P.C. filed by the accused of an offence under the Terrorist and Disruptive Activities (Prevention) Act, observed as follows: "That takes us to the approach which a Designated Court has to adopt while granting bail in view of the limitations placed on such power under Sec. 20(8). The sub section in terms places fetters on the power of a Designated Court on granting bail and the limitations specified therein are in addition to the limitations under the Code. Under Sec. 20(8), no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody be released on bail or on his own bond unless the two conditions specified in clauses (a) and (b) are satisfied. In view of these more stringent conditions, a Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. Since before granting bail, the court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report along with the statements in the case diary and other available materials should be closely examined. A prayer for bail ought not to be rejected in a mechanical manner.” Learned counsel for petitioner further referred to the ruling of Justice Sengottuvelan, in the decision reported in Saravanabhavanandam v. S. Murugaiyyan, 1986 L.W. (Crl.) 165. A prayer for bail ought not to be rejected in a mechanical manner.” Learned counsel for petitioner further referred to the ruling of Justice Sengottuvelan, in the decision reported in Saravanabhavanandam v. S. Murugaiyyan, 1986 L.W. (Crl.) 165. While dealing with Sec. 301, Crl.P.C. Justice Sengottuvelan observed as follows: “There is no provisions in the Criminal Procedure Code which enables a third party to get himself impleaded in the proceedings before the Criminal Court. As already observed, we have only Sec. 301, Crl.P.C., which enables the private parties to assist the prosecution and also submit written arguments with the leave of the court. According to Sec. 301, Crl.P.C. such assistance is to be given at the inquiry, trial or appeal in a criminal case. The question that arises is whether private parties can be allowed to intervene in the anticipatory bail petition with a view to represent matters before the court, when there is no provision for intervention in the Criminal Procedure Code. By intervention, it is understood that a party who is in possession of facts may appear before the court as an intervenor and make his submissions on the matter in issue. In such cases, such a party is shown as an intervenor in the proceedings before the court. When a party cannot be impleaded in a criminal proceeding, as held by this Court in the decision referred to above, he cannot be permitted to come in under the guise of an intervenor. But, at the same time bearing in mind the wholesome observations of the Supreme Court extracted above, the right of a party to represent matters before the court cannot be whittled down into a strait jacket formula of locus standi, which is unknown to criminal jurisprudence. It is open to any party to make his representations in the bail proceedings pending before this Court before the inquiry or trial starts.” 4. The learned counsel for the petitioner further submitted that there is no prohibition under law against the grant of bail for an offence under Sec. 20(b)(1) of N.D.P.S. Act, even if the Public Prosecutor objects the same, under Sec. 37 of N.D.P.S. Act. The learned counsel for the petitioner further submitted that there is no prohibition under law against the grant of bail for an offence under Sec. 20(b)(1) of N.D.P.S. Act, even if the Public Prosecutor objects the same, under Sec. 37 of N.D.P.S. Act. As the grant of bail is the exercise of a judicial power in a judicial proceeding, it is always open to the petitioner to adduce evidence, including the evidence in the form of an affidavit to prove that he is not guilty of the offence or that he is not likely to indulge in any such offences. In the instant case, the petitioner has filed affidavits from responsible persons to show that the petitioner was engaged in poultry business and on 110. 1994 at 10.00 a.m., he was engaged in collecting the dues from the customers. 5. On the other hand, the learned Government Advocate (Criminal Side) submitted that no doubt the power to grant of bail is in exercise of judicial power in a judicial proceeding, at that point of time, it is not open to the petitioner to adduce evidence. At that point of time, investigation will be at the initial stage and only after the completion of the investigation and charge-sheet is filed and in trial, when the prosecution proves the case beyond doubt? that the onus shifts to the accused to let in evidence. At the initial stage of investigation when the accused files a bail petition, the court has to look only to the record of investigation viz., First Information Report, 161 statement and other documents gathered by the investigating agency and not to any evidence produced by the accused and the petitioner is not entitled to adduce evidence at that point of time. In this connection, the learned Government Advocate referred to the ruling cited in Smt.Chand Dhawan v. Jawahar Lal, A.I.R. 1992 S.C. 1379, wherein referring to the exercise of the inherent power of the High Court, under Sec. 482, Crl.P.C. the Supreme Court has observed as follows: “...the High Court was not justified in reaching the conclusion that the proceedings were liable to be quashed on the basis of additional materials produced by the accused as those were required to be proved.” He further referred to the rulings reported in Kartar Singh v. State of Punjab, 1994 (2) L.W. (Crl.) 422, wherein it was observed as follows: “(16) Sub-sec. (8) of Sec. 20 of TADA Act imposing the ban on release on bail of a person accused of any offence punishable under the Act or any rule made thereunder, but diluting the ban only on the fulfilment of the two conditions mentioned in clauses (a) and (b) of that sub-section cannot be said to be infringing the principle adumbrated in Art. 21 of the Constitution. The learned Government Advocate submitted that at the point of granting of bail, the accused is not entitled to adduce additional materials including affidavits and the court has to confine only to the documents connected with the investigation of the case. The learned Government Advocate also cited a ruling reported in Narcotics Control Bureau v. Kishan Lal, 1991 S.C.C. (Crl.) 265 & 269, wherein the Supreme Court observed as follows: “Sec.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 Sec. 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 Court’s powers to grant bail under Sec. 439, Crl.P.C. are not subject to the limitation mentioned under Sec. 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 Sec. 439, Crl.P.C. and Sec. 37 of NDPS Act, Sec. 37 prevails.” 6. I have considered the contentions of the respective counsel. It is clear from the rulings of the Supreme Court in Narcotics Control Bureau v. Kishan Lal, 1991 S.C.C. (Crl.) 265, that the restriction for grant of bail under Sec. 37 of the Act or in addition to the restriction given under Sec. 439 of the Criminal Procedure Code and there is no prohibition that no bail can be granted for an offence committed under the N.D.P.S. Act. In Kamalapati v. State of West Bengal, 1979 Crl.L.J. 679, wherein the Supreme Court has observed that bail proceedings are judicial proceedings and the same has been reiterated in State of Maharashtra v. S.K. Bannu, 1981 M.L.J. (Crl.) 166: 1980 Crl.L.J. 1280. It is to be noted that grant of bail in essence is a judicious exercise of discretion by the court. The personal liberty of the accused person is to be balanced with the limitation imposed by Sec. 439 of Criminal Procedure Code and Sec. 37 of the N.D.P.S. Act. It is useful to refer Sec. 37 of the N.D.P.S. Act which reads as follows: “37. Offences to be cognizable and non-bailable: .(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), .(a) every offence punishable under this act shall be cognizable. .(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose this 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 granting of bail specified in clause (b) of Sub-sec. (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 7. The point for consideration is that when the investigation is at the initial stage and a person is arrested for the alleged offence under the N.D.P.S. Act, whether an elaborate enquiry should be held by adducing evidence including evidence in the form of affidavit for grant of bail, which in essence is exercise of discretion of the court. 8. I am of the view that where investigation is at initial stage, it is not open to the accused to adduce additional material and materials in the form of affidavits as those are required to be proved. Though grant Of bail is judicious exercise of discretion by the court, at that point of time, no elaborate enquiry is called for and evidence to be taken. Though grant Of bail is judicious exercise of discretion by the court, at that point of time, no elaborate enquiry is called for and evidence to be taken. The Supreme Court in Usmanbhai Dawoodbhai Menon v. State of Gujarat, 1988 M.L.J. (Crl.) 588, in connection with grant of bail, under Sec. 20 of TADA Act, which is similar to Sec. 37 of N.D.P.S. Act, has observed, that the following should be taken into consideration, viz. the allegations of facts, the police report along with case diary and other available materials produced by investigating agency. In view of the above, I am of the opinion that at that point of time, the court should confine itself to the records connected with investigation and it is not open to the accused to adduce any evidence which requires to be proved. Adducing of evidence will arise at the trial of the case after the prosecution proves the offence beyond reasonable doubt and not at the preliminary stage of investigation where the person is arrested for having committed an alleged offence and when the bail application is filed. I am unable to accept the contentions of Mr.A.A. Selvam the learned counsel for the petitioner that accused is entitled to adduce evidence at the point of grant of bail. With due respect to Justice Sengottuvelan, I am unable to accept the observation of the learned Judge to the effect that, “it is open to any party to make his representation in bail proceeding pending before this Court before the enquiry or trial starts.” No doubt the arrest of the petitioner interferes with the personal liberty, the grant of bail, under the N.D.P.S. Act due to the peculiar nature of the legislation imposes certain restrictions. There are stringent restrictions for grant of bail under Sec. 37 of the N.D.P.S. Act in addition to the restriction provided under Sec. 437 of the Criminal Procedure Code. The Constitution Bench of the Supreme Court in the ruling reported in Kartar Singh v. State of Punjab, 1994 L.W. (Crl.) 422 at 495, has upheld the constitutional validity of identical section in TADA Act as not violative of Art. 21 of the Constitution. The Constitution Bench of the Supreme Court in the ruling reported in Kartar Singh v. State of Punjab, 1994 L.W. (Crl.) 422 at 495, has upheld the constitutional validity of identical section in TADA Act as not violative of Art. 21 of the Constitution. There is therefore force in the contention of the Government Advocate (Criminal) to the effect that for grant of bail, under Sec. 37 of the Act, the court must refer only to material records connected with investigation and the accused person is not entitled to adduce elaborate evidence at the stage of granting of bail. I am therefore of the view that at the stage of grant of bail, the court has to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail on the basis of allegation of facts, the Police report along with the statement in the case diary and other available materials of investigation should be closely examined. The petitioner is not entitled to file affidavits or other materials at the stage of grant of bail as it requires proof and elaborate enquiry which in effect will convert bail proceedings into mini trial. Nevertheless, the allegation of facts contained in bail petition is also taken into consideration by the court. 9. In the instant case, mere are no allegations of mala fide against the prosecution. The allegations are only against A-1, who is alleged to have implicated the petitioner in the commission of the offence. Whether the first accused wrongly implicated the petitioner out of personal enmity require proof and has to be gone into only at the time of the trial and I feel it is not a reasonable ground to believe that the accused is not guilty of the offence. The plea of alibi has also to be gone into only at the time of the trial. Upon the allegations of the facts of the case and the materials placed by the investigation, the petitioner has not made out reasonable grounds that he is not guilty of the offence. In view of the above, the bail is refused and the bail petition is dismissed.