G. P. MATHUR, J. ( 1 ) THE respondent (Darshan Kumar) was granted bail in Special Case No. 36 of 1996 under Section 21/8 N. D. P. S. Act, P. S. Vijay Nagar, District Ghaziabad by Sri S. K. Malaviya II Addl. Sessions Judge on 16-10-1996. Under the orders of Honble the Chief Justice a case was registered for cancelling the bail granted to the respondent. Subsequently the Union of India also moved an application for setting aside the order dated 16-10-1996 and cancelling the bail of Darshan Kumar. ( 2 ) THE officers and staff of Narcotics Control Bureau, New Delhi, conducted search of House No. G-146 Sector-9 Vijay Nagar, Ghaziabad, in which Darshan Kumar was residing, on 18-11-1995. The door of the house was opened by Darshan Kumar himself. A polythene bag containing 3. 5 kg. Heroin and Rs. 1,24,430. 00 in cash was recovered from a steel almirah which had been kept in the bed room. The search was witnessed by two public witnesses. A Panchanama was immediately prepared on the spot by Mukhtiyar Singh, Investigating Officer of Narcotic Control Bureau. It was signed by the search witnesses and some others and a copy of the same was also given to the accused Darshan Kumar who made an endorsement and his signature in token of having received a copy thereof. A statement of the accused Darshan Kumar was also recorded under Section 67 of the N. D. P. S. Act on the same day wherein he admitted the recovery of 3. 5 kgs. heroin and Rs. 1,24,430. 00 from his residence. He admitted that he had kept the heroin for selling to his customers and he had been carrying on the aforesaid activities for the last 13-14 months. He also admitted that the money recovered had been earned by him by selling Smack. He had been supplying Smack to his customers in Delhi and used to deliver the article at the place indicated by them. He further admitted that the Smack recovered from his residence had been, kept by him for being delivered to a party in Delhi with whom talks were going on for several clays. The statement was recorded by Sri Kamal Kant and it runs into six pages. The last five lines of the statement were written by accused Darshan Kumar himself and every page was signed by him. The statement was recorded by Sri Kamal Kant and it runs into six pages. The last five lines of the statement were written by accused Darshan Kumar himself and every page was signed by him. ( 3 ) AFTER recover of the heroin and money accused Darshan Kumar was taken to Delhi for further interrogation where he was formally taken into custody at about 8 p. m. on the same day i. e. on 18-11-1995. He was produced before the duty Magistrate in Delhi on 19-11-1995 who authorised his detention in judicial custody until 21-11-1995. On 21-11-1995, the accused was produced before the Special Court. N. D. P. S. Act Patiala House. New Delhi, who directed that the accused be produced before Special Judge Ghaziabad on 22-11-1995 as the Special Court, New Delhi, had no territorial jurisdiction to try the offences. Thereafter, the accused was produced before the Sessions Judge, Ghaziabad on 22-11-1995 who authorised his detention in judicial custody up to 2-12-1995 and the said order of the remand was extended from time to time. ( 4 ) THE accused moved an application for being released on the ground that he had been falsely implicated in the case and that he hard been illegally detained by Delhi police from 21-11-1995 to 22-11-1995. This application was rejected by Sri Bhanwar Singh, learned Sessions Judge Ghaziabad by a detailed order on 4-12-1995. The accused then moved bail application No. 318 of 1996 before the learned Sessions Judge Ghaziabad. The application was heard on several dates. On 17-4-1996 the counsel for the accused sought adjournment and 23-4-1996 was fixed. On 23-4-1996 no one appeared on behalf of the accused and the application was dismissed. The accused also moved an application for being released on parole on the ground that his wife was ill. This application was rejected by Sri. S. S. Pundeer, the then II Addl. Sessions Judge, Ghaziabad, on 11-4-1996. After rejection of these applications, another application for bail was moved by the accused on 22-5-1996 and it is this application which has been allowed by Sri S. K. Malaviya by the impugned order and the accused has been granted bail. This application was rejected by Sri. S. S. Pundeer, the then II Addl. Sessions Judge, Ghaziabad, on 11-4-1996. After rejection of these applications, another application for bail was moved by the accused on 22-5-1996 and it is this application which has been allowed by Sri S. K. Malaviya by the impugned order and the accused has been granted bail. ( 5 ) THE material on record shows that after receiving information that the accused Darshan Kumar was in possession of Narcotics Drugs and Psychotropics substances liable to confiscation, Sri Shailendra Sharma, Assistant Director, Narcotics Control Bureau New Delhi passed an order under Section 41 (2) of N. D. P. S. Act in favour of Mukhtiyar Singh, I. O. , of Delhi Zonal Unit to search the premises of the accused Darshan Kumar. Thereafter, the search of the residence of the accused was conducted 6between 1 p. m. and 3 p. m. on 18-11-1995 and 3. 5 kgs. heroin and cash amounting to Rs. 1,24,430. 00 was recovered from a steel almirah kept in the room of the house. A Panchnama was prepared on the spot which was read over and a copy of the same was given to the accused. The statement of the accused was also recorded under Section 67 of the N. D. P. S. Act on the same day wherein he admitted the recovery of the aforesaid article and cash from his possession. He also admitted that he had been dealing in sale of heroin and smack for the last 13-14 months and had kept the heroin with him for being sold to a party in Delhi. This statement is not hit by Section 25 Evidence Act and is admissible in evidence see Raj Kumar Agarwal v. Union of India, 1991 Cri LJ 67 (SC) (sic ). In view of Section 37 of the N. D. P. S. Act, no person accused of an offence punishable for a term of imprisonment of five years or more under the Act can be released on bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. The facts of the case show that a very big quantity of heroin and substantial amount of cash was recovered from the possession of the applicant. The facts of the case show that a very big quantity of heroin and substantial amount of cash was recovered from the possession of the applicant. His statement shows that he has been dealing in this nefarious activity for last 13-14 months. This it can not be held by any stretch of imagination that the accused is not guilty of an offence under Section 21 of the Act or that he is not likely to commit any offence while on bail. Therefore, there is absolutely no ground on which bail could be granted. to him. It is also relevant to point out that an application for his release on the ground of the alleged unlawful custody for one day had been rejected by the learned Sessions Judge, Ghaziabad. The application for bail moved by the accused had been heard on several dates and it was rejected on 23-4-1996 when the counsel for the accused did not turn up. It was not a simple order of rejection on the ground of default as the had been heard on merits on more than one occasion on earlier dates. This kind of tactics is adopted when after coming to know the view of the Court an order of rejection on merits is sought to be avoided. Even an application for grant of short term bail on the ground of illness of his wife had also been rejected earlier. ( 6 ) IN the order granting bail it has been observed that the Panchanama does not show that the accused had given anything in writing that he had no objection to the search of his house being conducted in presence of Sri Shailendra Sharma. Sri Shailendra Sharma is an Assistant Director in the Narcotic Control Bureau and is a gazetted officer. In the panchnama it is mentioned as under :. . . The N. C. B. Officer informed Darshan Kumar that he is entitled for being searched before a Magistrate or a gazetted officer and that the N. C. B. team was headed by Asstt. Director Sri Shailendra Sharma who is a gazetted officer. Sri Darshan Kumar expressed that the search may be conducted in the presence of A. D. /n. C. B. . . as stated earlier, the panchnama has been signed by the accused. Director Sri Shailendra Sharma who is a gazetted officer. Sri Darshan Kumar expressed that the search may be conducted in the presence of A. D. /n. C. B. . . as stated earlier, the panchnama has been signed by the accused. It was not at all necessary to obtain any writing from the accused that he had no objection to the search of his house in presence of Shailendra Sharma. The reason given by the learned II Addl. Sessions Judge is, therefore, wholly illegal. ( 7 ) ANOTHER reason given for granting bail is that a perusal of the panchanama showed that the persons who conducted the search of the house did not give their own personal search to the accused. It appears that the learned II Addl. Sessions Judge did not at all care to read the Panchnama. Towards the end of the Panchanama it is mentioned as follows :". . . . . . . . . . Before and after the search the N. C. B. Officer offered for their personal search which declined by Darshan Kumar. . . . . . . . . . . . "thc record shows that Mukhtiyar Singh, Investigating Officer gave a notice to the accused to the effect that in case he wanted, the search could be made in presence of a Magistrate or a gazetted officer. However, Sri Shailendra Sharma Assistant Director N. C. B. who was himself a gazetted officer, was present. The following endorsement was made by the accused on the notice itself :"mujhe Sri Shailendra Sharma ke saamane talasi dene ko koi aitraj nahin hai. " Sd/- Darshan Kumar. This shows that the compliance of Section 50 of the Act was made and the accused himself offered that he had no objection to the search being made in presence of Sri Shailendra Sharma. ( 8 ) THE third reason given in the impugned order is that inventory of the articles recovered was not prepared and a photograph thereof was not taken. This omission has no bearing on the merits of the case. The fourth reason is that the accused was not produced before a Magistrate at Ghaziabad when the search was over at 3 p. m. but was taken to Delhi. In this connection it may be noticed that the office of the Narcotics Control Bureau is located at Delhi. This omission has no bearing on the merits of the case. The fourth reason is that the accused was not produced before a Magistrate at Ghaziabad when the search was over at 3 p. m. but was taken to Delhi. In this connection it may be noticed that the office of the Narcotics Control Bureau is located at Delhi. The statement given by Darshan Kumar showed that he had been dealing in this illicit trade for the last 13-14 months and had been supplying smack to his customers in Delhi. The huge quantity of heroin and substantial amount of cash recovered from his residence could give rise to a reasonable suspicion that he may be member of a bigger gang, operating in this activity. It was, therefore, legitimate on the part of the officers of N. C. B. to take the accused to Delhi for his interrogation and for finding out other details. The accused was formally taken into custody at 8 p. m. on 18-11-1995 in the office of N. C. B. at Delhi and naturally in these circumstances his production before the Metropolitan Magistrate in Delhi on 19-11-1995 was perfectly justified. Therefore, the third and fourth reasons given by the learned Sessions Judge have no substance and are also based upon misreading of evidence. ( 9 ) THE sixth reason given for granting bail is that the prosecution had not adduced any evidence (sic) (during) the trial since 2-5-1996 and that he is in custody for about ten months. The record shows that the complaint under Section 21 was filed in the Court of Special Judge N. D. P. S. Act Ghaziabad on 14-2-1996. The charge was framed on 23-4-1996 and 2-5-1996 was fixed for evidence on which date it was adjourned to 31-5-1996. Thereafter, the case had been adjourned on several dates either on account of recording of evidence in some other sessions trial or absence of the presiding officer, or adjournments sought on behalf of the accused or closure of the Court. The order sheet shows that on several dates the prosecuting counsel as well as prosecution witnesses were present. The record does not show that the trial had been adjourned solely on account of any default on the part of the prosecution or absence of prosecution witnesses. The order sheet shows that on several dates the prosecuting counsel as well as prosecution witnesses were present. The record does not show that the trial had been adjourned solely on account of any default on the part of the prosecution or absence of prosecution witnesses. ( 10 ) REGARDING the second condition mentioned in Section 37 (1) (b) (ii) of the Act to the effect that the accused is not likely to commit any offence while on bail, the learned Sessions Judge has observed that as the accused did not offer any resistance at the time of search of his house, it showed that he is not likely to commit any offence while on bail. The accused may not have offered any resistance at the time of search as he was taken by surprise-Besides several persons of Narcotics Control Bureau were present and he may have thought that offering any resistance would be futile. The fact that accused did not offer any resistance at the time of search of his house is wholly irrelevant and can under no circumstances lead to an inference that while on bail, he is not likely to commit any such offence. In fact the statement of the accused showed that he had been carrying on this activity for quite sometime and that he had acquired sufficient wealth in this illicit trade. He comes from a very humble back ground and has admitted that he was initially taking goats for grazing. The factors relevant for arriving at a conclusion as to whether the accused is likely to commit such offence while on bail have not at all been taken into consideration. the reason given by Sri. S. K. Malaviya, (earned II Addl. Sessions Judge shows that he has absolutely no knowledge of criminal law and he does not possess the necessary judicial acumen to perform the duties of a Sessions Judge. ( 11 ) SRI G. S. Chaturvedi, learned counsel for the accused has submitted that according to the report of Chemical Examiner the percentage of herein was very small and thereafter, it cannot be held that 3. 5 kg. heroin was recovered from the possession of the accused. The report of the Chemical Examiner shows that the percentage of the Diacetyle Morphine was 3. 5 per cent. 5 kg. heroin was recovered from the possession of the accused. The report of the Chemical Examiner shows that the percentage of the Diacetyle Morphine was 3. 5 per cent. This does not mean that the article recovered from the residence of the accused was not heroin or that it was some other substance. This point has not been taken into consideration by the learned Sessions Judge while granting bail to the accused. The alcoholic drinks do not contain hundred percent alcohol. Therefore, the mere fact that quantity of a particular organic substance was 3. 5 per cent cannot lead to an inference that what was recovered from the possession of the accused was not heroin. ( 12 ) SRI Chaturvedi has also urged that the considerations for grant of bail and cancellation therefore are different and therefore even if the accused has been wrongly granted bail, the same should not be cancelled. In support of this proposition he has placed reliance on Bhagirath Singh v. State of Gujarat, 1984 ACC 3 : (AIR 1984 SC 373) (SC), Vikramjeet Singh v. State of M. P. , AIR 1992 SC 474 : (1992 AIR SCW 40) and Mohan Singh v. Union Territory, 1978 (2) SC 366 : ( AIR 1978 SC 1095 ). In my opinion a distinction has to be made in cases where the legislature has made a provision different from Section 439, Cr. P. C. In view of Section 37 of the Act two conditions have to be satisfied before a person accused of an offence punishable for a term of imprisonment for five years or more can be granted bail and they are (1) there are reasonable grounds for believing that he is not guilty of such an offence and (2) that he is not likely to commit any offence while on bail. If these conditions are not satisfied, the order granting bail would be contrary to Section 37 of the Act. If an order of bail is passed which is not in accordance with Section 37 of the. Act, it would be illegal and in such circumstances it is the duty of the superior Court to set aside such an order. If these conditions are not satisfied, the order granting bail would be contrary to Section 37 of the Act. If an order of bail is passed which is not in accordance with Section 37 of the. Act, it would be illegal and in such circumstances it is the duty of the superior Court to set aside such an order. The authorities cited by the learned counsel do not relate to such offences where the grant of bail was conditioned by some special statutory provision governing the case but were governed by the provisions of the Code of Criminal Procedure. Therefore, they are clearly distinguishable. There is another aspect of the matter. Though the principle is that every crime is an offence against the society but an offence under the N. D. P. S. Act stands on a different footing as it really affects that society at large. The offences under this Act pose the greatest danger to the Society and it is for this reason that more stringent provision for bail is made and the legislature has laid down harsher punishment. In many countries possession of even a small quantity of heroin or like substance is made punishable with death and persons found guilty have been executed. No leniency can, therefore, be shown to those who indulge in the illicit trade of Narcotics Drugs or Psychotropic substances as it may completely ruin the life of a large body of persons. In this view of the matter the accused cannot be allowed to enjoy the privilege of bail which has been illegally granted to him. ( 13 ) FOR the reasons mentioned above, the application for cancellation of bail is allowed. The bail granted to the accused by the order dated 16-10-1996 by the II Addl. Sessions Judge Ghaziabad is cancelled. The learned Special Judge, Ghaziabad, shall take immediate steps for taking the accused Darshan Kumar in custody. ( 14 ) IT is clarified that any observation made in this order is only for the decision of the limited question regarding grant of bail and the learned Special Judge shall decide the case on the basis of the evidence adduced before him and without being influenced in any manner from any observation made in this order. ( 14 ) IT is clarified that any observation made in this order is only for the decision of the limited question regarding grant of bail and the learned Special Judge shall decide the case on the basis of the evidence adduced before him and without being influenced in any manner from any observation made in this order. ( 15 ) A copy of this judgment shall be sent to the learned Sessions Judge Ghaziabad and also to Sri S. K. Malaviya the then II Addl. Sessions Judge, Ghaziabad for their information. Application allowed. .