ORDER 1. "BAIL" or "JAIL" is a point prone to produce perplexity at times in Bail-Court and obfuscation becomes more operative when it is a case under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') providing additional limitations under section 37 of the Act. Eventually, the answer depends on judicial discretion which, as stated by Lord Mansfield in classic terms in John Wilkes Case (1770) 4 Burre 2528, should be governed by law and guided by rules, not by humour. In scheme of things there is nothing like unfettered discretion because, as observed by Benjamin Cardozo in elegant words "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure". 2. With this preludial point, I come to case on hand which has done full circle in that from one Single Judge it is back to another Single Judge. The applicant, lugge and locked in a case under sections 8/18 and 21 of the Act registered by Police Station Sanyogitaganj, Indore, filed third application for restoration of liberty under section 439 of the Code of Criminal Procedure, 1973 (for short 'the Code') on the fulcrum that co-accused Haider secured his release on bail subsequently on 29.9.1995 in Misc. Cri. Case No. 2379 of 1995 on the point of non-compliance of section 50 of the Act and that this enured to him as well. Confronted with this position and point, learned Single Judge felt on 14.12.1995 that the order passed in Misc. Cri. Case No. 2379 of 1995 shall have bearing on large number of cases and as such the question, labelled as one of importance, was fit to be considered by a larger Bench. Thereafter, the case, on direction, was laid before the Division Bench. Hon'ble Judges composing the Bench differed on a point and recorded conflicting opinion on the core question of considering non-compliance of mandatory provisions of section 50 of the Act at the stage of bail i.e. at pre-trial stage. Hon'ble Shukla J. held that Courts are "required to see as to whether there has been non-compliance", whereas Hon'ble Jain J. took the view that the Court is "not required to see as to whether there has been non-compliance" while considering the application for bail. Hon'ble Shukla J. held that Courts are "required to see as to whether there has been non-compliance", whereas Hon'ble Jain J. took the view that the Court is "not required to see as to whether there has been non-compliance" while considering the application for bail. In view of difference of opinion, I was nominated under Rule 11 of section 1, Chapter I of M.P. High Court Manual (Rules and Orders) to deal with the matter. 3. The question thus is whether the Court considering the application for bail at pre-trial or trial stage is obligated to consider, when so requested, as to whether there is non-compliance of section 50 of the Act and, if so, to release the incarcerated under trial prisoner on bail on that ground in terms of section 37 of the Act. 4. I have heard counsel for the parties on 25.4.1996 on their request. 5. To begin at the beginning, it needs to be stated that Shukla J. in his order dated 16.2.1996 quoted one order passed by me in Misc. Cri. Case No. 1294 of 1994 on 13.6.1994 - 1995 (1) EFR 414 (Asharfi Bhagat v. State of M.P.) under the impression that the view taken by him is similar to the one taken by me in that case. However, Jain J. in his separate order dated 23.2.1996 opined that the question on hand was not specifically dealt with by me in the aforesaid order. This case is perhaps allotted to me on the basis of non-consideration of this question by me earlier. Even then, I have now again read the order and noticed the order, rendered by me, contained the submission of the counsel but not the answer as such and order of bail seems to have been passed on features peculiar to that case. It is seen that no incriminating article was recovered from the possession of that applicant and the accusation had rested only on alleged smell in hand with no report about solution. It was thus not a case of search and seizure. So point was not considered. 6. The order of Shukla, J. has referred 1993 JLJ 24 (FB) (Ramdayal v. Central Narcotic Bureau, Gwalior); 1995 (4) SCC 190 (Union of India v. Thamisharasi and others); 1995 CrLJ 2662 (Saiyad Mohd. It was thus not a case of search and seizure. So point was not considered. 6. The order of Shukla, J. has referred 1993 JLJ 24 (FB) (Ramdayal v. Central Narcotic Bureau, Gwalior); 1995 (4) SCC 190 (Union of India v. Thamisharasi and others); 1995 CrLJ 2662 (Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat); 1995 (1) MPWN75 (Majar Singh v. State of M.P.); 1995 (1) EFR 414 (Asharfi Bhagat v. State of M. P.) and Misc. Cri. Case No. 1396 of 1995 (Babugeer @ Babulal v. The State of M.P.), whereas the order of Jain, J. has considered AIR 1980 SC 785 (Niranjan Singh and another v. Prabhakar Rajaram Kharote and others); AIR 1991 SC 558 (Narcotics Control Bureau v. Kishanlal and others); AIR 1982 SC 1413 (Lt. Co. Prithvi Pal Singh Bedi v. Union of India); 1995 (1) MPWN 75 (Majar Singh v. State of M.P.); 1995 (1) EFR 414 (Asharafi Bhagat v. State of M.P.); and Misc. Cri. Case No. 1396 of 1995 (Babugeer @ Babulal v. The State of M.P.). 7. Section 37 of the Act provides as under :- "37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 – (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 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 granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail." 8. Section 50 of the Act provides as under:- "50. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail." 8. Section 50 of the Act provides as under:- "50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shal1, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female." 9. As is luculent, section 37 imposes additional limitations on granting of bail. Limitations are that Public Prosecutor shall be given opportunity to oppose the application and, on opposition, no release shall be ordered unless the Court was satisfied that there were reasonable grounds for believing that the applicant was not guilty of such offence and that he was not likely to commit any offence while on bail. It is at once noticeable that the provision does not speak of satisfaction that there is non-compliance of any mandatory provision like section 50 or any other section for that matter. To lift the hurdle, one is required to show the existence of reasonable grounds indicative of his guiltilessness. Section 50 does not deal with the question of release on bail but speaks of conditions under which search of persons shall be conducted. This provision is held to be mandatory. Under section 50 (3), the power is given to the Gazetted Officer or the Magistrate before whom person is brought to forthwith discharge the person if he saw no reasonable grounds for intended search. Law is not in tenebrosity. This provision is held to be mandatory. Under section 50 (3), the power is given to the Gazetted Officer or the Magistrate before whom person is brought to forthwith discharge the person if he saw no reasonable grounds for intended search. Law is not in tenebrosity. The prosecution can lead evidence to show compliance of mandatory provision at proper stage but before that stage section 50 cannot be invoked at infant stage to secure bail or discharge from the Court. Section 37 is not intended to be subservient or subterfluent to section 50 of the Act. 10. There is no occasion to interosculate section 50 and section 37 of the Act and to ignore the mettle of section 37. Point perirhinal to section 37 cannot be permitted to become perfidious and in my view does not lack perspicuity. The scope of those two provisions, covering different fields, is desultory and does not warrant consideration of compliance or non-compliance of section 50 of the Act at pre-trial stage. To illustrate, if non-compliance can result in entitlement for bail, then compliance should result in disentitlement for bail. Either of these positions is foreign to the scope of section 37 of the Act. Bail plea has to rest on section 439 of the Code read with section 37 of the Act and hot on consideration of non-compliance or compliance of section 50 of the Act. Submission on that basis would be premature. 11. The offences under the Act have the potential to destroy national health and wealth. To curb or control this menance of great magnitude minimum punishment by way of incarceration and fine is provided on trial to deter prospective violators of the law and stringent limitations in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force are provided so that those accused do not easily succeed in securing termination of judicial custody as under trial prisoners and the society is saved from pernicious activities. 12. It is thus beyond pale of controversy that compliance or non-compliance of section 50 of the Act, even when mandatory, does not come up for consideration as a relevant factor at the stage of bail plea or framing of charges. Infraction of a provision and impeccability are thus different matters. An issue cannot be prejudged before evidence and conclusion of trial. Infraction of a provision and impeccability are thus different matters. An issue cannot be prejudged before evidence and conclusion of trial. Section 37 cannot be consigned to nihilism under the umbrella of section 50 which comes up for scrutiny after evidence only. Position of law is imperforate. Alleged infirmity in search, if any, does not by itself furnish any reasonable ground for believing that the applicant is not guilty in terms of section 37 for the purpose of incineration of incarceration during trial. 13. The case of Thamishacasi and others and Arif U. Patel (supra), referred to by Shukla J. was substantially concerned with the question of bail on default of non-filing of challan within the statutory period in terms of section 167 (2) of the Code and with the aspect of non-applicability of section 37 of the Act in such cases as the additional fetters are to be applied in case of bail plea on merits and not on default simplicitor. The case of Saiyad Mohd. (supra) considered section 50 of the Act and held that "if no evidence to this effect is given, the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the N.D.P.S. Act was not established" - (para 7). It is thus manifest that proper consideration of section 50 depends on evidence only. It is thus not invocable at any stage prior to it. 14. In my view, controversy, as assumed, is laid rest by the Apex Court. In (1996) 2 SCC 37 (State of H.P. v. Pirthi Chand and another) the Apex Court has ruled that the discharge of accused at the stage of taking cognizance of offence on ground of non-compliance of section 50 is not proper. It is held that "It is to be seen whether the accused has been afforded such a right and whether the authorised officer has violated the mandatory requirement as a question of fact, has to be proved at the trial." And "Under these circumstances, the learned Sessions Judge was not justified in discharging the accused after filing of the charge sheet holding that mandatory requirement of section 50 had not been complied with." 15. In my view, likewise, release on bail before trial holding that mandatory requirement of section 50 had not been complied with would be contrary to section 37, repugnant to the object and scheme of the Act and thus improper and unjustified. This decision equally applies to question of release on bail. 16. The limitations imposed under section 37 of the Act in public interest cannot be sent on holiday on irrelevant considerations prematurely. 17. In Asharfi's case (supra), I have already said as under :- "The aforesaid Act is intended to combat and curb the menace threatening national health and wealth. The Act is made more rigorous by introduction of Section 37. The Jail is now a Rule and bail an exception to the violators of the provisions of this Act. It is, therefore necessary to examine whether fetters as fixed under section 37 of the Act are satisfied or not." It does not contain any finding about non-compliance of section 50 or that the applicant earned entitlement on any non-compliance. Facts presented no occasion to deal with that point as noted above. 18. As held in AIR 1978 SC 527 (Babusingh and others v. The State of Uttar Pradesh), liberty is too precious a value recognised under Article 21 of the Constitution of India. R.G. Inger Soil observed that "liberty is soul of the man". Patric Henry voiced that "give me liberty or give me death". However, De Tocquevilled observed that liberty cannot stand alone and must be paired with a companion virtue such as liberty with morality; liberty with the common good; liberty with civil responsibility. That being so, any person accused of the offence under the Act, and thus breaker of morality and civil responsibility and unconcerned with the common good, cannot succeed in his bail plea without satisfying the limitations under section 37 and recourse to alleged non-compliance of section 50 before evidence on that point at that stage for that purpose is impermissible in law. 19. In my view the plea of 'not guilty' for the purpose of section 37 can thus be not structured and spun in that manner. That question relates to trial and not to bail. To hold otherwise is to rewrite and distort section 37. Legislative intent has to be kept intact. 19. In my view the plea of 'not guilty' for the purpose of section 37 can thus be not structured and spun in that manner. That question relates to trial and not to bail. To hold otherwise is to rewrite and distort section 37. Legislative intent has to be kept intact. All the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose of the Act itself. In terms of Leisy V Hardin (135 US 100) it is apt to say that orders in conflict did not in form or in substance present the particular question under consideration in sufficient details. After all, bail orders are interlocutory in nature and do not properly become precedents. Now point of law is cleared to serve as precedent. 20. In the ultimate analysis, I regretfully feel myself obliged to dissent from the view taken by Shukla J. and respectfully record my assent to the view recorded by Jain J. In the result, Single Bench orders of this Court as referred to which take the view in accord with the view of Shukla, J. are found as not reflecting true intention of the law. The view taken by Jain, J. and concurred by me settles the point of law of frequent recurrence. The applicant is thus not entitled to obtain bail on submission of non-compliance of section 50 of the Act. 21. Ex Consequenti, as stated above, I concur with the view of Jain, J.. The majority opinion thus rules that the Court considering the application for grant of bail in cases under the Act at pre-trial stage or during trial before recording of evidence on the point in question is not required to consider whether there had or had flat been compliance of section 50 of the Act and plea of bail is not rejectable or acceptable on that basis. This order unknots the nodule as projected. 22. As the case is on a reference by the Single Bench, I would have directed listing of this case before the Single Bench for disposal of the application in conformtiy with the majority opinion with regard to section 50 of the Act but I am informed that the trial is concluded and the application for bail is now rendered infructuous. As the case is on a reference by the Single Bench, I would have directed listing of this case before the Single Bench for disposal of the application in conformtiy with the majority opinion with regard to section 50 of the Act but I am informed that the trial is concluded and the application for bail is now rendered infructuous. Hence, I record my opinion of concurrence with that of Jain, J. and mark this case as disposed of finally. 23. Point is preened but in view of the importance of the question, as indicated by the learned referring judge, I also deem it proper to direct the Registrar of this Court to forward immediately copy of this order to all the District and Sessions Judge with a request to them to circulate it to all Additional Sessions Judges/Magistrates posted in their Sessions Divisions for prompt information.