D. M. PATANIK J. ( 1 ) IN the above cases the petitioners move for bail for alleged offences under the Narcotic Drugs an Psychotropic Substances Act, 1985 (in short, the Act ). ( 2 ) THE collective voice of the petitioners counsel in all these cases and other cases of similar nature manifests in their devoutness in human dignity and liberty, when Mr. Deepak Mishra learned counsel for one of the petitioners as a prelude to his argument referred to the saying of Patrick Henry give me liberty or give me death, quoted by one of the learned Judges of this Court in the case of Mangal Hembram v. State of Orissa ( 3 ) LIBERTY is fundamental and precious to everybody. Man is a divine being. He lives in the society and therefore, claims right, liberty and equality. Humap rights cannot be evaluated in isolation. They have to be read in the social context. Liberty of an individual can be curtailed in a given situation when exercise of that right of the Individual works out to the detriment of another individual and the society at large. As Justice Krishna Iyer observed in the case of Bahu Singh v. State of Uttar Pradesh, after all personal liberty of an accused or a convict is fundamental, suffering lawful eclipse only in terms of procedure established in law. The last four words of the Article 21 are the life of that human right. ( 4 ) THEREFORE, liberty of free movement can be curtailed in a given case but through legal procedure alone. We may, therefore, examine whether release of the petitioners on bail should be allowed as claimed by them. ( 5 ) THE petitioners face indictment for offences in illicit drug trafficking and some of them are in custody pending investigation. They seek release on bail on the logic that if, because of the violation of the mandatory provisions of the Act relating w search and seizure etc. under Sec. 42 and Sec. 50 as has been held by the apex Court in the case of State of Punjab v. Balbir Singh, proceedings are vitiated and they will be ultimately acquitted, there is no reason for their further detention in custody. under Sec. 42 and Sec. 50 as has been held by the apex Court in the case of State of Punjab v. Balbir Singh, proceedings are vitiated and they will be ultimately acquitted, there is no reason for their further detention in custody. ( 6 ) THE submission is no doubt demanding attractive and pursuasive; but keeping in view the seriousness of the offence, the legislative intent in providing a stringent provision in the matter of bail under Sec. 37 of the Act, to accede to such a submission would not only lead in facilitating and encouraging the offence of illicit drug trafficking but also it would frustrate the whole purpose for which the Act has been brought out in its present amended form. It would be apposite to deal with the Courts power in exercising the judicial discretion in the matter of bail in general. ( 7 ) WHILE dealing with the discretion to grant bail, Sulaiman, J. in the famous Meerut conspiracy case reported in K. J. Joglekar v. Emperor held as under: There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is not only one single circumstance which necessarily concludes the decision but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified or catalogued exhaustively. ( 8 ) TEK Chand, J. in the case of Rao Harnarain Singh Sheoji Singh and others v. The State, while dealing with a case under Section 497, Cr. P. C. (old Code) held that the probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail particularly in a case in which evidence has not so far been led. The Courts while deciding such applications will be traversing beyond their proper in habit and would be exceeding the limits of their function if they engage themselves in discovering the guilt or innocence of the accused-appellant which can only be determined at the trial stage. It was further reasoned that the fact that the accused persons have been accused of having committed grave offence punishable with long term imprisonment is a consideration against their being re leased on bail. It was further reasoned that the fact that the accused persons have been accused of having committed grave offence punishable with long term imprisonment is a consideration against their being re leased on bail. The question of severity of the punishment must be looked at not from the point of view of what sentence on the facts of a particular case the Court should award but to see the maximum punishment which the Court may award. ( 9 ) THE Apex Court in the case of The State v. Captain Jagit Singh, considering that the accused in that case was prima facie found to have committed an offence punishable with imprisonment for a term of 14 years, held that once the accused is found to have committed a non-bailable offence of serious nature, the Court should refuse bail even though it has a very wide power under Section 498, Cr. P. C. (Old Code ). ( 10 ) A Division Bench of this Court in the t case of State of Orissa v. Damodar Pentia and Gora Pentia, held that where there is a prima facie evidence in the commission of an offence punishable with death or imprisonment for life even though the accused may have a possible defence, the same should be left for decision by the appropriate forum at the appropriate stage arid should not be gone into judging the merit of the case at the time of determination of the question of bail. Thus it is found from the above discussion that in case of grave offences the judicial discretion in granting bail may not be exercised even though the accused may satisfy the Court about furnishing adequate security to face the trial. We may now examine the point posed that as to whether bail should be granted for an offence under the Act on the grounds which are ultimately available for an acquittal of an accused, for noncompliance of the mandatory provisions of the Act as claimed at the Bar. ( 11 ) THIS Act was enacted as is evident from the preamble to make stringent provisions of the trial for illicit drug trafficking and to provide deterrent punishment. ( 11 ) THIS Act was enacted as is evident from the preamble to make stringent provisions of the trial for illicit drug trafficking and to provide deterrent punishment. It is found from the state of objects and reasons of the Amending Act 2 of 1989 that even though major offences are nonbailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail (vide Statement of Objects and Reasons, Banerjees 1991 Edition of the N. D. P. S. Act page- 5 ). ( 12 ) SECTION 37 of the Act has come up many a time for decision before various High Courts including our own High Court in the Full Bench decision in the case of Banka v. State. To precisely speak the law on the point is that in case of offences under the Act the judicial discretion to grant bail under Section 439, Cr. P. C. is subject to limitation prescribed under Section 37 of the Act. In the case of Union of India v. Thamisharusi, it has been held that the NDPS Act being a special statute supersedes the provisions under Sections 437/439, Cr. P. C. to the extent of inconsistency. Such inconsistency has been explained by observing that while under Section 439 the, burden is on the prosecution to prima facie show that the accused is guilty, under Section 37 of the Act, it is for the accused to show that he is not guilty. Therefore, the provisions of Section 37 of the Act supersedes to the extent of this inconsistency. ( 13 ) THE controversy raised at the Bar is, even if contraband substance is recovered from the accused and in a particular case it is found that there is non-compliance with the mandatory provisions with regard to search and seizure for which the accused is bound to be acquitted ultimately because of such non-compliance as has been held in the case of Balbir- Singh (supra), than the accused should be considered as not guilty since the argument proceeds that he has committed no offence in the eye of law. With due respect I am unable to subscribe this view. With due respect I am unable to subscribe this view. In my view, the moment prosecution shows recovery of the contraband substance from the possession of the accused, according to the intention of the legislature, the words employed in Section 37 of the Act and the spirit behind the provisions, he shall be considered as guiltyt for the limited purpose of bail under that section. Where, however, recovery of the substance from the possession of the accused is neither proved nor shown, the case would be totally a different one and in that case it can be said that he has committed no offence. But once recovery is shown, the accused can be said to be guilty of the offence though on various other ground he may be ultimately discharged or acquitted as the case may be. The moment recovery is proved or shown the prosecution is discharged of the burden of prima facie showing that the accused is guilty. Once this is shown then the accused is to discharge the burden by showing that he is not guilty. Without this burden being discharged he would not be entitled to bail as provided under Section 37 of the Act. ( 14 ) WHILE dealing with the question of the accused discharging the burden of proving that he is not guilty as mentioned above, the apex Court in the case of Thamishawari (supra) in para -10 of the judgment held that the accused cannot discharge this burden until the police paper is available with him and this is obviously not before the charge-sheet is submitted. The learned counsel for the parties submit that this burden can be discharged by the accused even from the case diary produced on the side of the State while hearing the matter of bail and according to both Mr. Mishra and Mr. Palit, the diary if at that stage discloses which would be apparent on record that there has been non-compliance with the mandatory provisions of the Act, that itself would be sufficient to show that the accused has discharged the burden so on him. I may point out at this juncture that the Additional Solicitor General in the above referred case raised this exact point that the Court can form this belief by referring to the contents of the case diary, even before charge sheet is filed. I may point out at this juncture that the Additional Solicitor General in the above referred case raised this exact point that the Court can form this belief by referring to the contents of the case diary, even before charge sheet is filed. The apex Court Art termed this argument as fallacioust fur the reason that the accused is not supplied with any material from which he can discharge this burden as provided under Section 37 (b) of the Act and the Court held such a construction of Clause (b) of sub-section (1) of Section 37 as not permissible. ( 15 ) THE above observation of the Supreme Court is sought to be explained away by both Mr. Palit and Mr. Mishra It was contended by Mr. Palit that the observation of the Court was in the context for deciding the import of Section 167 (2) which section being a complete provision itself in the statute, would not permit any detention in custody beyond the prescribed period. But, according to the learned counsel, any attempt to limit the right of the accused to be released from the custody even during investigation cannot be curtailed by taking resort to the embargo under Sec. 37 of the Act. Mr. Mishra, on the other hand, explained by saying that this observation rather supports the case of the defence and according to him, assuming for the sake of argument the same is accepted, it can be judged only in the context with which it was so observed and that a decision is an authority for what it actually decides and not as to what would logically follow from it. To support the above contention, Mr. Mishra relied on the decisions in the case of Ambika Quarry Works v. State of Gujarat, and the State of Orissa v. Sudlumsu Sekher Mishra, and in the case of H. H. Maharajadiroj Maddawarao Sacindhia v. Union of India. ( 16 ) I have no quarrel over the proposition laid dawn by the apex Court as submitted by Mr. Mishra. I am also conscious that a decision of the Court is binding so far as the ralio decidendi is concerned and not the conclusion I am unable to accept the way both the learned counsel have tried to explain the observation of the apex Court with regard to the limitation prescribed under Sec. 37 of the Act. Mishra. I am also conscious that a decision of the Court is binding so far as the ralio decidendi is concerned and not the conclusion I am unable to accept the way both the learned counsel have tried to explain the observation of the apex Court with regard to the limitation prescribed under Sec. 37 of the Act. No doubt the matter for decision before the Court was as to whether the provisions under See. 167 (2), Cr. P. C. was applicable also to the cases under the Act. The apex Court held that it is so applicable. But at the same time while comparing the inconsistency in the provisions of the Criminal Procedure Code and that of the Act, the Court dealt with the provisions of Section 37 of the Act and in that context the Court as a matter of proposition has laid down that until the requisite papers are supplied to the accused, the accused would not be in a position to discharge the burden of showing that he is not guilty. This is a reasoning given by the Court and I do not find anything not to accept this reasoning of the apex court. Rightly or wrongly this is the proposition laid down by the Court which is binding on this Court. But this does not bring out a conclusion that the accused cannot discharge the burden by placing any material from his side in order to show that he is not guilty and once he shows this, he may be released on bail and the embargo under Section 37 (b) of the Act would not workout against him. But till then he cannot be released on bail. ( 17 ) THE above view of mine finds support from the view of brother Pasayat, J. who, in the case of State v. Surendranath, held that the provisions in Section 37 of the Act are stringent and unless the accused proves to the contrary that he is not guilty, bail is not to be granted. ( 18 ) RELIANCE is put in the cases reported in Rabi Sahoo v. State Naralwri Das v. State Sochi Rewa alias Sahitri Rewa v. The State of Orissa, and Fakir Sundari v. State of Orissa, to support the arguments that bail should be granted during investigation also if there has been violation of the mandatory provisions of the Act. ( 18 ) RELIANCE is put in the cases reported in Rabi Sahoo v. State Naralwri Das v. State Sochi Rewa alias Sahitri Rewa v. The State of Orissa, and Fakir Sundari v. State of Orissa, to support the arguments that bail should be granted during investigation also if there has been violation of the mandatory provisions of the Act. The learned counsel both Mr. Palit and Mr. Mishra also cited a number of decisions of other High Courts which I do not feel necessary to discuss since I would not have differed from the opinion expressed by the above Single Bench decisions of this Court, but for, what has been observed and held by the apex Court in the case of Thamisharusi (supra ). The decision of the apex Court clearly lays down that until police papers are supplied to the accused (which would only arise when charge-sheet is submitted), the latter would not be in a position to discharge the burden that he is not guilty. It is further made clear that such a belief also cannot be funded the papers with the prosecution available at that stage. All these above decisions of this Court on which the petitioners rely relate to release on bail during investigation. For the reasons and the proposition laid down by the apex Court with regard to the accused discharging the burden of proving that he is not guilty, these decisions are found to be impliedly over-ruled, being based on the reasoning contrary to that of the apex Court. .