JUDGMENT Lokeshwar Singh Panta, J.—The above application has been filed by the State under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 seeking to set aside the order dated 9.6.1998 of Sessions Judge, Chamba in B.A. No. 75 of 1998 where by the accused-respondent was released on bail for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act). 2. The application came up before the Honble Chief Justice on 25.9.1998 and notice was issued to the accused-respondent returnable within four weeks. When the matter was taken up on 27.11.1998 the Honble Chief Justice directed placing of the application before the Division Bench for re-consideration of the decision in Rajiv Kumar v. State of Himachal Pradesh, (1998 (1) Shim. L.C. 320), rendered by learned Single Judge. 3. Briefly stated the facts of the present case are that Deen Mohd. accused-respondent was apprehended by Head Constable Budhi Prakash on 19.3.1998 at about 7.45 a.m. at Forest Barrier, Tunuhatti, District Chamba. The police officer stopped him and memo of search was served upon him in presence of independent witnesses. The accused gave consent for search and on such personal search, 4.75 kg. charas was recovered from his bag. F.I.R. No. 36/98, dated 19.3.1998 came to be lodged against him in Police Station, Dalhousie under Section 20 of the NDPS Act and the accused was arrested. Charge-sheet was filed against the accused in the Court of learned Sessions Judge, Chamba for the commission of the alleged offence. The accused was lodged in judicial custody in Sub-Jail, Chamba. He filed Bail Application No. 75/98 which was allowed by the learned Sessions Judge, Chamba on 9.6.1998 vide order impugned in this application. 4. Sessions Judge, Chamba has enlarged the accused on bail mainly relying on the judgment of the learned Single Judge rendered in Rajiv Kumar v. State of Himachal Pradesh, (1998 (1) Shim. L.C. 320). In Rajiv Kumars case, opinum was recovered and seized from the possession of the accused Rajiv Kumar by the police officer and the said police officer arrested the accused, registered the complaint in the Police Station and also conducted the investigation under the NDPS Act. Accused Rajiv Kumar filed bail application before the Sessions Judge, Shimla which came to be rejected on 19.12.1997. Accused Rajiv Kumar filed bail application before the Sessions Judge, Shimla which came to be rejected on 19.12.1997. Thereafter, the accused approached the High Court and it was urged on his behalf by his learned Counsel that such police officer being the complainant should not have proceeded with the investigation of the case and since the investigation was carried out by the police officer, who was the complainant, there is a suspicion with regard to fair and impartial investigation. Learned Single Judge relied upon the ratio of the apex Court judgment in the case of Megha Singh v. State of Haryana, (AIR 1995 SC 2339), High Court of Rajasthan in Gyan Chand v. The State of Rajasthan, (1993 Cri. LJ. 3716) and High Court of Punjab and Haryana in Risala v. State of Haryana, (1996 (3) Crimes 259), allowed the bail application and enlarged the accused Rajiv Kumar on bail by imposing some conditions upon him. 5. In order to appreciate the correctness and legality of the ratio of the decision in Rajiv Kumars case (supra), we consider it necessary and expedient to deal with the relevant provisions contained under Section 37 of the NDPS Act and Section 439 of the Code of Criminal Procedure, 1973 governing the procedure of bail. 6. Section 37 of the NDPS Act reads as follows:— "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 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 oppose 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 limitation on granting of bail specified in clause (b) of subsection (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail." As Section 37 (I) (b) (ii) clearly provides that where the Public Prosecutor opposes the application no person accused of an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail or on his own bond unless 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. These conditions are cumulative and not independent in each other. It is well settled that where the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty of offence and is also satisfied that the accused is not likely to commit any offence while on bail, bail can be granted. Reasons are to be indicated by the Court in respect of both the conditions. There has to be not mere subjective satisfaction of the Court but the objective assessment of the fact of the materials and evidence to be brought on record by the parties. For adjudicating on the second requirement namely the antecedents of the accused and his potentialities to commit offence in future are some of the relevant factors. The underlining object of the NDPS Act cannot possibly be lost sight of while interpreting the provisions of the same. The NDPS Act thus being special enactment brought about with a view to control and regulate the operation relating to Narcotic Drugs and Psychotropic Substances, the provisions contained in Section 37 of the NDPS Act, noticed above, which are in negative terms straightaway limit the scope of applicability of the provisions of the Code of Criminal Procedure, 1973 regarding bail, thus, it cannot be held that the High Court has no power to grant bail under Section 439 of the Code of Criminal Procedure, 1973. Such powers are, of course, available but the same are subject to limitations prescribed under Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under Section 37 of the NDPS Act are applicable to the High Court also in the matter of granting bail. 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 of the Code and Section 37 of the NDPS Act, Section 37 of the NDPS Act prevails. The provisions of Section 4 of the Code of Criminal Procedure, 1973 also make it clear that when there is a special enactment in force relating to the manner of investigation, inquiry of otherwise dealing with such offence, other powers of the Code of Criminal Procedure should be subject to such special enactment. Consequently, the powers to grant bail by any of the provisions of the Code of Criminal Procedure, 1973 are necessarily to be subject to conditions contained in Section 37 of the NDPS Act. 7. We may usefully refer to the law laid down by the apex Court in Narcotics Control Bureau v. Kishan Lal and others, (AIR 1991 SC 558), to support our reasonings. The apex Court in this case specifically dealt with some of the decisions rendered by it dealing with analogous provisions in other special enactments. Rule 184 of the Defence and Internal Security of India Rules, 1971, which is analogous of the NDPS Act was also discussed. After reproducing Rule 184, the apex Court observed and follows:— "The Rule commences with a non obstante clause and its operative part imposes a ban on release on bail of a person accused of convicted of a contravention of the Rules. It impose fetters on the exercise of the power of granting bail in certain kinds of cases." The observations made in the case of Balchand Jain v. State of Madhya Pradesh, (AIR 1977 SC 366), were noticed which reads as under:— "But even if Rule 184 does not apply in such a case, the policy behind this rule would have to be borne in mind by the court while exercising its power to grant anticipatory bail under Section 438. The rule-making authority obviously though offences arising out of contravention of rules and order made there under were serious offences as they might imperil the defence of India or civil defence or internal security or public safey or maintenance of public order of hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any rule or order made under the Rules, shall be relased on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned \s not guilty of such contravention. If these are the conditions provided by the Rule-making authority for releasing on bail a person arrested on an accusation of having committed contravention of any rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant 1 anticipatory bail to a person apprehending arrest on such accusation, though they would not be strictly applicable." (Emphasis supplied) Sub-section (8) and sub-section (9) of Section 20 of the TADA Act which also limit the scope of Sections 438 and 439 of the Code of Criminal Procedure came up for consideration before the apex Court. It may be mentioned here that sub-sections (8) and (9) of Section 20 of the TADA Act are once again analogous to Section 37 of the NDPS Act. The following observation of the apex Court in Usmanbhai Dawoobhai Menon v. State of Gujarat, (AIR 1988 SC 922), also came to be noticed:— "Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20 (7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made there under, but that result must, by necessary implication follow. It is true that the source of power of a Designated Court to grant bail is not Section 20 (8) of the Act as it only places limitations on such power. It is true that the source of power of a Designated Court to grant bail is not Section 20 (8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are in addition to the limitations under the Code or any other law for the time being in force1. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is a Court other than the High Court or the Court of Session within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act." (Emphasis supplied) 8. The controversy whether the power of the High Court to grant bail under Section 439 of the Code, as noticed in the aforesaid decision, was also discussed and the following paragraph of the judgment was reproduced:— "The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act. It commences with a non obstante clause and in its operative part by the use of negative language prohibits the enlargement of bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be 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. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only places limitations on such powers. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It, therefore, follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from Section 20(8) of the Act." The Honble Judges proceeded further and observed that in Usmanbhai’s case (supra) this court did not express anything contrary to what has been observed in Balchand Jains case (supra) and on the other hand observed that such enactment should prevail and non obstante clause must be given due importance. For all these reasons, the Honble Judges concluded that the powers of the High Court to grant bail under Section 439 of the Code of Criminal Procedure are subject to limitations contained in Section 37 of the NDPS Act and the restrictions placed on the powers under the NDPS Act are also applicable to the High Court in the matter of granting bail. 9. In the light of the aforesaid judgments of the apex court on the question of granting bail to the accused involved in the commission of offence punishable under the NDPS Act, we may now consider the applicability of the judgments relied upon by the learned Single Judge in Rajiv Kumars case (supra). 10. In Gyan Chand v. The State of Rajasthan, (1993 Cr.L.J. 3716), the learned Single Judge while hearing the appeal against conviction and sentence of the accused acquitted him on the ground that the investigation by an officer who after receiving information of an offence and making search and seizure, investigated the case personally, such an investigation was not fair and the inspector was not proper authority to investigate as his status was that of the same as complainant and the conviction of the accused was set aside being violative of the principles of criminal jurisprudence. 11. 11. In Megha Singh v. State of Haryana, (AIR 1995 SC 2339), the accused was convicted and setneced by the Additional Judge, Designated Court, Bhiwani at Sirsa in Terrorist Act Case. Against his conviction and sentence in appeal, the apex Court in paragraph No. 4 of the judgment observed as under:— "After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the PWs 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing features in this case. PW-3, Siri Chand, head constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." 12. In Risala v. State of Haryana, (1996 (3) Crimes 259), the learned Single Judge concluded that when police officer who arrested and recovered contraband from the accused also conducted the investigation of the case, in those circumstances, the accused was entitled to bail. 13. The judgment of the apex Court in Megha Singhs case (supra) and that of Gyan Chands case (supra) have been rendered after the trial was concluded and the accused in those cases were convicted and sentenced by the competent courts below and those were not the cases where the accused were enlarged on bail at the initial stage of the trial of the offence. The illegality or invalidity of the investigation by the police officer who is the complainant in the case and also conducted the investigation and the nature and extent of prejudice, if any caused thereby has to be considered by the Trial Court at the time of trial of the case and the accused has no enforceable legal right to be enlarged on bail for any other reason than the one prescribed under the law covering the field of bail in the NDPS Act and the Code of Criminal Procedure. 14. In Mahesh Chand and etc. v. State of Rajasthan and etc., (1985 Cri.L.J. 301), the Full Bench of the Rajasthan High Court while dealing with the provisions of Sections 167(2), 309(2), 439 and 437 of the Code of Criminal Procedure recorded the findings in paragraphs No. 25, 27 and 29 as under:— "The illegality of an order remanding a person accused of non-bailable offence to custody under Section 167(2) or Section 309(2) of the Criminal Procedure Code does not, per se, entitle the accused to be released on bail. The new code does not contain any provision entitling an accused to be released on bail merely on the ground, and without more, that his detention in prison is illegal. In order to obtain his release on bail, the accused must show that his case is either covered by para (a) of Section 167(2) or that he is entitled to it under the provisions of Chapter 33 of the new Code. It is not legally permissible to introduce "a stage of compulsory bail not envisaged by the Code." Bail is no remedy, and has never been conceived or intended in law to be a remedy, for illegal detention. An accused person shall be admitted on bail in accordance with the enacted provisions of law, as interpreted by the superior Court from time to time, and not otherwise, not even if the court discovers some illegality vitiating his detention in prison. In the latter situation, the bail court should leave the matter to be dealt with by the court which may be competent to set the accused at liberty without any restraint on such liberty." 15. In the latter situation, the bail court should leave the matter to be dealt with by the court which may be competent to set the accused at liberty without any restraint on such liberty." 15. In State of Punjab v. Balbir Singh, (AIR 1994 SC 1872), the apex court in paragraph-26 held as under:— "Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue to whether the same has been explained or not will be a question of fact in each case. If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165 and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case." Placing the reliance on the above referred paragraph of the judgment of the apex court, it is implicit and implied that the illegality or irregularity in conducting the investigation or non-compliance of the provisions of the NDPS Act by the empowered officer will have to be considered by the trial court during the course of trial of the case and it cannot be held that the accused as automatically entitled to bail even at the initial stage for the failure if any of the authorised officer to comply with the provisions of the NDPS Act. 16. 16. At this stage, we may take the assistance of the judgment of the apex court in State of Himachal Pradesh v. Prithi Chand and another, (1996 2 SCC 37), in which the question before the apex court was whether the accused arrested under the NDPS Act could be discharged at the stage of taking cognizance of the offence on ground of non-compliance of Section 50 or not. To answer the proposition the Honble Judges held that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on the facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon. The Honble Judges proceeded to observe by way of caution that the High Court should exercise its inherent power to quash FIR/charge-sheet/complaint only in rarest of rare cases and it should not weigh the pros and cons of the prosecution case or consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. Further it was also held that in cases of economic offences or offences involving moral turpitude or crimes of grave nature greater circumspection and care and caution should be borne in mind by the High Court when it deals with such offender 9t the initial stage of the trial. It was, therefore, held that discharge of the accused at the stage of taking cognizance of the offence on ground of non-compliance of Section 50 was not proper in such cases. 17. It was, therefore, held that discharge of the accused at the stage of taking cognizance of the offence on ground of non-compliance of Section 50 was not proper in such cases. 17. After analysing the underlining principles of law governing the grant of bail or discharging the accused arrested under the NDPS Act, we are of the considered opinion that such an accused is not entitled to be enlarged on bail on the sole ground of an assumption, even at the pretrial stage that if the investigation of the case is carried out by .the police officer who had seized and recovered the contraband and filed formal F.I.R. or complaint such investigation is unfair and against the basic tenets of criminal jurisprudence. The question has necessarily to be examined and decided by the Trial Court at appropriate stage if and when urged before it in the peculiar nature of provisions and powers of the officers under the Act and the effect of such investigation should not be considered a base for enlarging the accused on bail ignoring the provisions contained in Section 37 of NDPS Act. For the reasons aforesaid, we do not subscribe our opinion with the reasoning of learned Single Judge expressed in Rajiv Kumar v. State of H.R, (1998 (1) Shim. L.C. 320), and the law laid down in that case is no longer a good law and the same shall stand overruled. In the identical facts and circumstances of the case, the Division Bench of Orissa High Court in State v. Hah Prasad Patel and others, (1995 (IV) Crimes 634), held the same view taken by us in this case. 18. Consequently, for the afore-stated reasons, we quash and set aside the order dated 9.6.1998 passed by the Sessions Judge, Chamba in Bail Application No. 75/98 enlarging the accused-respondent on bail and his bail shall stand cancelled. We may make it abundantly clear that the learned Sessions Judge shall not in any way be influenced by any of the observations made by us relating to the facts of the case which are confined to answer the question involved in this application. The accused-respondent is not precluded from seeking bail after arrest or surrender if he so desires and the Court concerned in such a case shall decide the same in accordance with the provisions of bail laws and the specific provisions of the special enactment concerned. The accused-respondent is not precluded from seeking bail after arrest or surrender if he so desires and the Court concerned in such a case shall decide the same in accordance with the provisions of bail laws and the specific provisions of the special enactment concerned. The question whether the investigation conducted by the Police Officer who is complainant in the case is vitiated or not, too shall be decided by the Sessions Judge in accordance with law if and when such contention is urged before him, at the time and after the trial is concluded only. Order Accordingly.