JUDGEMENT 1. The learned Judge, Special Court, Dhenkanal having refused the petitioner's prayer for bail in Special Case No. 4 of 2001 arising out of Hindol P. S. Case No. 36 of 2001 under S. 20(a) of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (in short N.D.P.S. Act), he has approached this Court under S. 439, Cr. P.C. seeking his release on bail. 2. On a definite information received in Hindol P.S. to the effect that the present petitioner-Srikanta Dash of Bhagabanpur cultivated in his bari, cannabis plants, the O.I.C. of concerned P.S. reflected this fact in Station Diary Entry No. 341 dt. 18-8-2001 before proceeding to the spot intimating the same by the by to his immediate superior officer over V.H.F. message followed by extract of the Station Diary entry. Having visited the spot where after compliance of mandatory provisions of the Act, he detected in the bari of the petitioner live cannabis plants numbering six, which were uprooted from the ground in presence of witnesses. On weighing, the cannabis plants came to 7 kg. 600 gms. In support of cultivating of the said cannabis plants in his bari, no licence or authority having been produced by the petitioner, the O.I.C., Hindol P.S. seized the same after completing necessary procedural formalities. He drew up a plain paper F.I.R. to that effect on the spot and took up investigation of the case. On his return to the P.S., he drew the formal F.I.R. and thus, registered Hindol P.S. Case No. 36 of 2001 under S. 20(a) of the N.D.P.S. Act against the accused. 3. The learned counsel Shri Indrajit Mohanty for the petitioner persuaded this Court to release the petitioner on bail in the light of the case law cited below : 1. (1996) 10 OCR 372 : (1996 Cri LJ 2686) (Umakanta Patel v. State of Orissa) 2. (1996) 11 OCR 9 : (1996 Cri LJ 3068) (Balbir Singh v. State of Orissa) 3. (1994) 7 OCR 177 : (Ramesh Kumar Jaiswal v. State of Orissa) 4. (1994) 7 OCR 674 : (Pilli Dilli Dora v. State of Orissa) 4. Shri Satyabrata Pradhan, the learned Additional Standing Counsel for the State, on the other hand, vehemently opposed the bail application in view of S. 37 of the N.D.P.S. Act which bars grant of bail to the accused, who is charged with offence under S. 20(a) of the Act. Shri Satyabrata Pradhan, the learned Additional Standing Counsel for the State, on the other hand, vehemently opposed the bail application in view of S. 37 of the N.D.P.S. Act which bars grant of bail to the accused, who is charged with offence under S. 20(a) of the Act. 5. Having gone through the F.I.R. lodged by the O.I.C., Hindol P.S. Case Diary and statements of witnesses recorded by the I.O. under S. 161, Cr. P.C. I am of the view that the prosecuting agency has apprehended the petitioner for having committed an offence under S. 20(a) of the N.D.P.S. Act punishable wth rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to Rs. 50,000/-. In one word, there is prima facie case against the petitioner under S. 20(a) of the N.D.P.S. Act. 6. Therefore, while adjudicating the bail application I am called upon to examine the case law relied upon by Shri Indrajit Mohanty in support of his contentions and also S. 37 of the Act restricting the Court in taking liberal approach while granting bail for offence under N.D.P.S. Act. 7. In (1996) 10 OCR 372 : (1996 Cri LJ 2686) (supra) Justice R. K. Dash Judge of this Court (as he then was) has taken the view that once a person is accused of committing an offence and his liberty is curtailed, he has a right to seek for release on bail at every moment. This right cannot be curtailed by any statute. The accused has to discharge burden under S. 37 of the N.D.P.S. Act when his prayer for bail is being considered and the Court finds that procedural safeguards have not been followed, it can look into the case diary for a limited purpose of finding out if there are reasonable grounds to believe that the accused is not guilty of the offence. Ultimately he ruled in the reported case that the accused is entitled to be released on bail on account of infraction of requirement of S. 50 of the N.D.P.S. Act. Ultimately he ruled in the reported case that the accused is entitled to be released on bail on account of infraction of requirement of S. 50 of the N.D.P.S. Act. Emphasis has been given to the personal liberty of individual under Art. 21 of the Indian Constitution for which it is imperative on the part of the officer under S. 50 of the N.D.P.S. Act to inform the person to be searched of his right that if he requires to be searched before a Gazetted Officer or a Magistrate. This is a valuable right given to the persons to be searched in presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit worthiness to the proceeding while equally providing important safeguard to the accused. Non-compliance of provisions of S. 50 of the Act vitiates the trial. This legal proposition has been ruled by the Apex Court in the case of State of Punjab v. Balbir Singh, reported in (1994) 2 JT (SC) 108 : (1994 Cri LJ 3702). Therefore, regard being had to the said dictum of the Hon'ble Supreme Court I, while considering the prayer for bail, looked into the relevant records including the case diary and found that the O.I.C., Hindol P.S. after giving his identity to the petitioner asked him whether he wanted his bari to be searched by a Gazetted Officer or by him to which he gave his written consent to be searched by him whereupon he along with witnesses searched his bari after giving his personal search and also the search of staff and witnesses, detected six number of live cannabis plants in his bari. In presence of overwhelming materials in support of observance of the mandate prescribed by S. 50 of the Act by the prosecuting agency, it cannot be contended that there has been non-compliance of mandatory provisions of S. 50 of the Act. That being so (1996) 10 OCR 372 : (1996 Cri LJ 2686) (supra) is of little or of no help to the petitioner. 8. In (1996) 11 OCR 9 : (1996 Cri LJ 3068) (supra) Shri P. K. Misra, Judge of this Court (as he then was) while adjudicating an application under S. 439, Cr. That being so (1996) 10 OCR 372 : (1996 Cri LJ 2686) (supra) is of little or of no help to the petitioner. 8. In (1996) 11 OCR 9 : (1996 Cri LJ 3068) (supra) Shri P. K. Misra, Judge of this Court (as he then was) while adjudicating an application under S. 439, Cr. P.C. ruled that for non-compliance of S. 42(1) of the N.D.P.S. Act, the accused is entitled to be released on bail as there is reasonable ground to believe that ultimately the petitioner may not be found guilty of the offence under Act. 9. Keeping in mind the proposition of law as has been ruled in the reported case. I have perused the relevant records and found that the O.I.C. of the concerned P.S., who acted upon a definite information received in the P.S. regarding cultivation of cannabis plants by the petitioner in his bari, he entered this fact in the Station Diary vide Station Diary Entry No. 341 dt. 18-8-2001 which he intimated by the by to his immediate superior officer over V.H.F. message followed by the extract of the Station Diary Entry as contemplated under S. 42(1) and (2) of the N.D.P.S. Act. Hon'ble Supreme Court in the case of State of Punjab v. Balbir Singh, reported in (1994) 7 OCR (SC) 283 : (1994 Cri LJ 3702) observed thus : "(2-C) u/S. 42(1) the empowered officer if has a prior information given by any person that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to S. 42(1) if such officer has to carry out such search between sunset and sunrise he must record the grounds of his belief. To this extent this provisions are mandatory and contravention of the same would affect the prosecution case and vitiates the trial. (3) u/S. 42(2) such empowered officer, who takes down any information in writing or records the grounds under proviso to S. 42(1) should forthwith send a copy thereof to his immediate superior. To this extent this provisions are mandatory and contravention of the same would affect the prosecution case and vitiates the trial. (3) u/S. 42(2) such empowered officer, who takes down any information in writing or records the grounds under proviso to S. 42(1) should forthwith send a copy thereof to his immediate 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 or whether the same has been explained or not, will be a question of fact in each case." 10. In view of the aforesaid observation of the Hon'ble Supreme Court on perusing the F.I.R. and also the case diary produced before me by Sri Pradhan for the State, I am convinced that the stringent requirement of the mandatory provision under S. 42(1) of the N.D.P.S. Act have been properly complied with for which there is no scope for believing that ultimately the petitioner may not be found guilty of such offence. Thus (1996) 11 OCR 9 : (1996 Cri LJ 3068) ruled upon by Shri Indrajit Mohanty does not apply to the case at hand. 11. In (1994) 7 OCR 674 (supra) a pertinent question that arose for consideration is whether in absence of any chemical examination, merely on the basis of the oral statement, the seized article can be held to be ganja. 12. Section 2(iii) of the Act defines cannabis (hemp) to mean "(a) Charas (b) Ganja, i.e., flowering or fruiting tops of cannabis plants (excluding the seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated and (c) any mixture, with or without any natural material of any of the above forms of cannabis or any drink prepared therefrom." In the reported case it has been held that chemical examination is necessary to determine whether seized article is ganja for successful prosecution of the case. 13. In the instant case, the seized article was sent to the State F.S.L., Rasulgarh Bhubaneswar, for chemical examination but chemical examination report was not received at the time of consideration of the bail application by this Court. 13. In the instant case, the seized article was sent to the State F.S.L., Rasulgarh Bhubaneswar, for chemical examination but chemical examination report was not received at the time of consideration of the bail application by this Court. Reliance has also been placed on 1994 (7) OCR 177 (supra) by the learned counsel for the petitioner in support of his contention that ganja means flowering or fruiting tops of the cannabis plant and in the absence of a report to that effect from the Scientific Officer, the petitioner cannot be held liable u/S. 20(a) of the N.D.P.S. Act and in such a view of the matter his detention in the prison before being found guilty of the offence with which he is charged is quite illegal and uncalled for. But I do not agree with the aforesaid contention particularly when it is not disputed that the petitioner has been apprehended for the commission of an offence under S. 20(a) of the N.D.P.S. Act punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to Rs. 50,000/- for which I am not inclined to take liberal approach in grant of bail under the N.D.P.S. Act in view of S. 37 of the Act. Moreover, in the absence of the result of the chemical examination of the seized article, I am not expected to ultimately conclude that the seized materials do not relate to the flowering or fruiting tops of the cannabis plant which can be finally determined during trial. 14. Whle adjudicating an application under S. 439, Cr. P.C. for pre-trial release of the accused from jail custody, I cannot ignore the mandatory requirements of S. 37 of the Act and the conditions governing the grant of bail under the Code of Criminal Procedure. In (2001) 6 Supreme 844 : (2001 Cri LJ 4240) (State of Madhya Pradesh v. Kajad), the Apex Court held as follows (at p. 4241 of Cri LJ) :- "The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of S. 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. A perusal of S. 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of Cl. (b) of S. 37(1). For granting bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in Cl. (b) of sub-section (1) of S. 37 or in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for." 15. It is not out of place here to mention the view taken by their Lordships of the Supreme Court in the case of (Union of India v. Ikram Khan), reported in (2001) 4 Supreme 178 : ( AIR 2000 SC 3397 ) to the effect that while considering the question of bail, the Court has to bear in mind the provisions of S. 37 of the N.D.P.S. Act which are mandatory in nature particularly when the accused is facing trial under provisions of the Act. In the ultimate result, the application for bail merits no consideration and is rejected. Application rejected/dismissed.