JUDGMENT : Aniruddha Bose, J. 1. The petitioners in all these cases have been primarily accused of offence of being in possession of contraband articles under the provisions of The Narcotic Drugs and Psychotropic Substances Act, 1985 (the 1985 Act) beyond commercial quantity and are seeking bail pending their trial. In their petitions for bail, the petitioners question the legality of the process of search and seizure through which the contraband articles are alleged to have been recovered from them and they seek bail mainly on the ground that such search and seizure process are flawed. There is special provision restricting grant of bail to persons accused of offences under the 1985 Act. Such restrictions have been specified in Section 37 of the Act:- “37. Offences 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 he cognizable; (b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity 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; (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 (2 of 1974), or any other law for the time being in force on granting of bail.” 2. The manner in which search is to be conducted under the said Act has been stipulated in Sections 41, 42, 43 and 50 thereof and these provisions specify:- “41. The manner in which search is to be conducted under the said Act has been stipulated in Sections 41, 42, 43 and 50 thereof and these provisions specify:- “41. Power to issue warrant and authorisation.-(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the paramilitary forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset:— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in section 42 may — (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 50. Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 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 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 shall, 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. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 3. Thrust of submissions of Mr. Kabir, learned counsel appearing for the petitioners is that in the event there is flaw in the search and seizure process and non-compliance of any of the statutory safeguards, that would ultimately lead to acquittal in the trial. On this premise, he wants us to come to satisfaction that there are reasonable grounds for believing that the petitioner in each case is not likely to be convicted, which is necessary for grant of bail having regard to the provisions of Section 37 of the 1985 Act. On this premise, he wants us to come to satisfaction that there are reasonable grounds for believing that the petitioner in each case is not likely to be convicted, which is necessary for grant of bail having regard to the provisions of Section 37 of the 1985 Act. He has referred to a large body of authorities in support of his arguments that on that point. The judgments on which Mr. Kabir has relied upon in detail are:- (i) State of Punjab vs. Baldev Singh, AIR 1999 SC 2378 (ii) State of Himachal Pradesh vs. Pawan Kumar, AIR 2005 SC 2265 (iii) State of Rajasthan vs. Parmanad, AIR 2014 SC 1384 (iv) Tofan Singh vs. State of Tamil Nadu, (2014) 6 SCC (Cri) 196 (v) Dilip vs. State of Madhya Pradesh, (2007) 1 SCC 450 (vi) Union of India vs. Shah Alam, (2009) 16 SCC 644 (vii) Sarija Banu vs. State, (2004) 12 SCC 266 (viii) Thana Singh vs. Central Bureau of Narcotics, (2013) 2 SCC 590 (ix) Ritesh Chakravarti vs. State of Madhya Pradesh, (2006) 12 SCC 321 (x) Gurjant Singh @ Janta vs. State of Punjab, (2013) 13 SCALE 295 (xi) State of Uttaranchal vs. Rajesh Kumar Gupta, (2007) 1 SCC 355 (xii) Mohd. Ramzan vs. State (NCT of Delhi), (2005) ILR 1 Delhi 859 (xiii) Jadunandan Roy vs. State of West Bengal, (1999) 2 CWN 759 (xiv) Harun Rashid vs. State of West Bengal, (2005) 1 CHN 517 (xv) A judgment of a Coordinate Bench delivered on 7th November 2014 in the case of Mainul Haque vs. The Union of India in C.R.A. No. 601 of 2011. 4. Mr. Kabir has also brought to our notice several orders of different Benches of Coordinate strength of this Court in which bail has been granted in relation to cases initiated under the NDPS Act where the quantum of contraband articles exceeded the commercial quantity. These orders are:- (i) Rabindra Nath Mondal vs. State of West Bengal (C.R.M. No. 16810 of 2014 dated 30.01.2015) (ii) Alman Tasir Mamon vs. State of West Bengal (C.R.M. No. 15610 of 2014 dated 30.01.2015) (iii) Basudeb Hawladar vs. State of West Bengal (C.R.M. No. 16164 of 2014 dated 29.01.2015) (iv) Sakib Ahmed vs. State of West Bengal (C.R.M. No. 14995 of 2014 dated 30.01.2015) (v) Jiarul Sk. vs. State of West Bengal (C.R.M. No. 15076 of 2014 dated 30.01.2015) (vi) Mustafa Sk. vs. State of West Bengal (C.R.M. No. 15076 of 2014 dated 30.01.2015) (vi) Mustafa Sk. vs. State of West Bengal (C.R.M. No. 12138 of 2014 dated 30.01.2015) (vii) Answar Halder vs. State of West Bengal (C.R.M. No. 17206 of 2014 dated 30.01.2015) (viii) Jiyarul Sk. vs. State of West Bengal (C.R.M. No. 16997 of 2014 dated 30.01.2015) (ix) Bapi Raman vs. State of West Bengal (C.R.M. No. 17008 of 2014 dated 30.01.2015) (x) Anup Hawladar vs. State of West Bengal (C.R.M. No. 15643 of 2014 dated 30.01.2015) (xi) Atikur Samad @ Apu vs. State (C.R.M. No. 7742 of 2015) (xii) Monirul Islam @ Manik vs. State (C.R.M. No. 7309 of 2015) (xiii) Jiarul Sk. @ Sajahan Sk. @ Jiru vs. State (C.R.M. No. 17365 of 2014) Baring CRM No. 16164 of 2015, CRM No. 14995 of 20104 and CRM No. 15076 of 2014, in all these cases the Court considered violation of the provisions of Section 50 of the 1985 as a factor for granting bail to the petitioners. Apart from these decisions, several other authorities have also been relied upon by Mr. Kabir. Among these authorities, we shall refer to the decisions later in this judgment which we found relevant for adjudication of the points raised in these petitions. We, however, do not consider it necessary to deal with all the decisions cited, which may be on the same points of law. 5. So far as cases before us are concerned, it is not in every petition there is plea of recovery from person, which would warrant strict compliance of Section 50 of the 1985 Act. We have, in this judgment applied the ratio of the judgment of the Supreme Court in the case of Pawan Kumar (supra) for construing the meaning of personal search. In C.R.M. No. 15 of 2016, recovery of 376.65 Kgs of Ganja is alleged to have been made from a truck. In C.R.M. No. 10053 of 2015 total recovery is alleged to have been made of 42 Kg 400 grams of Ganja from joint possession of the accused persons of which one of them, Md. Jairul Sardar has filed the application. In this case also allegation is recovery from a bag and not through personal search of the accused. In C.R.M. No. 10053 of 2015 total recovery is alleged to have been made of 42 Kg 400 grams of Ganja from joint possession of the accused persons of which one of them, Md. Jairul Sardar has filed the application. In this case also allegation is recovery from a bag and not through personal search of the accused. Similar is the case of the petitioner Lutfar Mia @ Lulfar Mia in C.R.M. No. 11719 of 2015 in which quantum of Ganja alleged to have been recovered from a travel bag exceeding commercial quantity. Allegation against the petitioner in C.R.M. No. 9843 of 2015 (Abdus Samad Molla) is recovery of 24 Kgs of Ganja from the rear seat of a motorcycle. In these cases the safeguards contemplated in the 1985 Act in relation to personal search and subsequent seizures, prima facie would not apply. There are however allegations of search of person and seizure thereafter in C.R.M. No. 10119 of 2015 (Bhola Das), C.R.M. No. 10801 of 2015 (Ketabul Sk.), C.R.M. No. 10809 of 2015 (Md. Abdul Haque @ Abdul Haque), C.R.M. No. 9297 of 2015 (Md. Murselim @ Md. Nur Selim), C.R.M. No. 9370 of 2015 (Afajul Hoque) and C.R.M. No. 94 of 2016 (Nazmul Islam @ Liton). In C.R.M. No. 10119 of 2015, additional point has been taken by the petitioner on variation of sample weight of the seized contraband article which was sent to the chemical Laboratory, from 50 grams to 83 grams. 6. The consequence of allegations of recovery of contraband articles in breach of statutory safeguards in relation to offences under the 1985 Act has been laid down in the Constitution Bench judgment of the Supreme Court in the case of State of Punjab vs. Baldev Singh (supra). In this decision it has been explained in paragraph 55 of the Report:- “On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, or prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial, that the provisions of Section 50 and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal’s case cannot be understood to have laid down that an illicit article seized during a search of a person, or prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa’s case correctly interprets and distinguishes the judgment in Pooran Mal’s case and the broad observations made in Pirthi Chand’s case and Jasbir Singh’s case are not in tune with the correct exposition of law as laid down in Pooran Mal’s case.” 7. As to what would constitute personal search has been examined by the Supreme Court in the case of Pawan Kumar (supra). In this judgment it has been held:- “We are not concerned here with the wide definition of the word "person" which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothings." In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear. 10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person." One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free.” 8. On behalf of the State, prayer of the petitioners for bail has been resisted by Mr. Ayan Bhattacharya, learned counsel, who assisted the learned Public Prosecutor Manjit Singh in these cases. Main stand of the State is that at the time of consideration of the question of grant of bail, question of validity of search and seizure ought not to be gone into. In the event the seized articles exceed the commercial quantity, prayer for bail ought to be rejected. Two decisions of this Court were cited by Mr. Bhattacharya apart from other authorities. The first one is the decision of a Coordinate Bench of this Court in the case of Rakibul Sk. @ Islm (C.R.M. No. 949 of 2015) decided on 13th May, 2015. In this case, allegation against the accused was recovery of 10 litres of codeine mixture from his possession, which he had in a big plastic container. Referring to large bodies of authorities including Baldev Singh (supra), Pawan Kumar (supra) and Parmandand (supra), the Coordinate Bench rejected the petitioner’s bail plea. In this case, allegation against the accused was recovery of 10 litres of codeine mixture from his possession, which he had in a big plastic container. Referring to large bodies of authorities including Baldev Singh (supra), Pawan Kumar (supra) and Parmandand (supra), the Coordinate Bench rejected the petitioner’s bail plea. In this case, the Bench observed, inter-alia:- “There can be no doubt that the requisites of Section 50 have to be complied with. An empowered officer about to search a person is obliged to inform the person about to be searched, of his right under sub-section of Section 50 to be taken to the nearest gazetted officer or to the nearest magistrate for making search. However, as held by the Supreme Court in paragraph 55, whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of evidence led at the trial. Irregularity of procedure may ultimately vitiate the proceeding and lead to acquittal. However, that is a matter to be decided on the basis of the evidence at the trial.” 9. Judgment of a Referee judge in a later case has also been relied upon by the State, being the case of Hussain and Another, 2016 (2) JCC (Narcotics) 122. Reference to a third Judge was made in that petition for bail registered as C.R.M. No. 10595, when two Hon’ble Judges of a Division Bench took contrary views on the question of granting bail to an accused detained under the 1985 Act on the allegation of being in possession of contraband articles beyond the commercial quantity. In that case the petitioners were arrested by the by the officers of NCB for having possession of Dextropropoxyphene, a scheduled drug as per subclauses (vii a) and (xxiii a) of Section 2 of the 1985 Act. The commercial quantity of such drug is 500 grams. Alleged recovery of that product was to the tune of 34.36 kgs from joint possession of the accused persons. The said item is also covered by the Drugs and Cosmetic Act 1940. The commercial quantity of such drug is 500 grams. Alleged recovery of that product was to the tune of 34.36 kgs from joint possession of the accused persons. The said item is also covered by the Drugs and Cosmetic Act 1940. Before a Division Bench of this Court, question had also arisen as to whether coverage of the said item under the Drugs and cosmetics Act, 1940 would have had overridden the application of the 1985 Act, but for adjudication of these applications, we do not consider it necessary to deal with the part of judgment delivered by the Referee Judge on that aspect of the controversy. The Referee Judge had formulated five issues to be dealt with by His Lordship, and issues formulated under the sub-heads (d) and (e) were:- “(d) Whether in the present case the search and seizure was vitiated due to infringement of the mandatory provisions of Section 50 of the N.D.P.S Act and therefore the petitioners were entitled to be enlarged on bail? (e) Whether the question of bail relating to any offence punishable under the N.D.P.S. Act can be considered when the quantity of contraband was much above the commercial quantity and the prayer for bail is opposed by the Public Prosecutor, without taking into account, the statutory prohibition contained in Section 37 of the said Act?” The question as regards compliance of Section 50 of the NDPS Act 1985 was examined by the Referee Judge and it was held:- “Now, coming to the next question framed against question no. (e), it is found one of the essential grounds on which, the petitioners have approached this court for bail is contravention of the mandatory provisions of section 50 of the NDPS Act during search and seizure. Not only, whether section 50 has been complied with or not is a matter to be decided on evidence at the trial, as has already been decided by a division bench of our court comprising of the Hon’ble Justice Indira Banerjee and the Hon’ble Justice Saidullah Munsi in CRM No. 949 of 2015 Rakibul Sk. Not only, whether section 50 has been complied with or not is a matter to be decided on evidence at the trial, as has already been decided by a division bench of our court comprising of the Hon’ble Justice Indira Banerjee and the Hon’ble Justice Saidullah Munsi in CRM No. 949 of 2015 Rakibul Sk. @ Islam vs. The State taking into account all the decisions of the Apex Court on the point and more particularly the Constitutional Bench decision in the case of State of Punjab vs. Baldev Singh, 1999 (2) JCC (SC) 348 : AIR 1999 SC 2379 where it was categorically held that the issue relates to compliance or non-compliance of section 50 of the NDPS Act is a matter to be decided on the trial. At the same time this is not one of such case, where the accused/petitioners were not apprised of their statutory legal right to be searched before a Gazetted Officer or a Magistrate and offered to opt before whom they were wanting to be searched but from the materials available from the case diary to which our attention has been drawn by the counsel of the NCB, it appears that before the accused/petitioners were searched, the Officers of the raiding party in writing apprised them about their such legal right and sought for their option, however both of them did not avail of the same. In any event, on the face of the judgments referred herein above, these questions of compliance or non-compliance of section 50 of the NDPS Act, cannot be gone into at this stage, when a court is considering the question of bail of any accused booked for commission of any offence punishable under the NDPS Act. The question no. (e) is accordingly answered.” 10. We shall first deal with the question as to whether we ought to express our satisfaction straightaway that there are reasonable grounds for believing the detained accused in each case before us is not guilty of the offence alleged if at this stage we find from the materials disclosed that there has been violation of the mandatory provisions of Section 50. The decision of the Coordinate Bench in C.R.M. No. 949 of 2015 as also that of the Referee Judge in C.R.M. No. 10595 of 2014 is that the Court considering the question of grant of bail ought not to examine that aspect, referring to the Constitution Bench decision in the case of Baldev Singh (supra). Mr. Kabir, however, submits that before the Coordinate Bench as also before the Referee Judge, detailed argument was not advanced on this point and he wants us to take a deeper look into the law enunciated by different authorities on these points. In particular, he has referred to the decision of the Supreme Court in the case of Sarija Banu (A) Janarthani vs. State, (2004) 12 SCC 266 , to contend that for considering the question of bail, the question of compliance of Section 42 of the 1985 Act is a relevant consideration. Mr. Kabir also has referred to the directions of the Supreme Court issued in the case of Thana Singh (supra) in a case arising out of bail plea of accused persons detained in connection with offences under the 1985 Act. We heard him, being mindful of the fact that the decisions of the Coordinate Bench as also the Referee Judge are binding on us, and we can express a contrary view only if we find these decisions per incuriam, having been delivered ignoring the principle laid down by any binding authority, or by not taking into consideration any specific provision of law. 11. Mr. Kabir refers to violation of the provisions of Section 50 under two heads. First is when search of body of the person is made along with baggage. Second is when the persons seeking to fulfil the role of Gazetted Officer is part of the raiding team. On behalf of the State, it has been pointed out, relying on the decisions of Jarnail Singh vs. State of Punjab, (2011) 3 SCC 521 , Madan Lal vs. State of Himachal Pradesh, (2003) 7 SCC 465, that the duty on the part of the State agency to take an accused to a Gazetted Officer, if he is intended to be searched in person would arise if the accused so requires. The other authorities relied upon on the first issue are Ram Swaroop vs. State (NCT of Delhi), (2013) 14 SCC 235 , Kanaiya Lal vs. State of Madhya Pradesh, (2000) 10 SCC 380 , State of Haryana vs. Ranbir @ Rana, (2006) 5 SCC 167 , Babubhai Odhavji Patel vs. State of Gujarat, (2005) 8 SCC 725 and Gulsher Mohd. vs. State of Himachal Pradesh, (2015) 12 Scale 1. On the second point, Mr. Kabir’s case is that member of the raiding team cannot be the Gazetted officer, whose presence during search is contemplated in the aforesaid provisions of the 1985 Act. He has cited the decision in the case of Ritesh Chakrabory (supra) as also a judgment of this Court in the case of Palash Mondal vs. State, 2016 (2) Cal Cri. LR 637 and a Bench judgment of this Court in C.R.A. 601 of 2011 Mainul Haque vs. The Union of India (supra). Learned counsel for the State on the other hand referred to the judgments of the Supreme Court delivered in the cases of State of Rajasthan vs. Ram Chandra, (2005) 5 SCC 151 and M. Prabhulal vs. The Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449 and Ram Swaroop vs. State (Govt. of NCT) of Delhi (supra) and State of Rajasthan vs. Ram Chandra, (2005) 5 SCC 151 . 12. We have referred to several orders passed by Coordinate Benches, which have been cited by Mr. Kabir, in which breach of the provisions of Section 50 was a factor which influenced the decision of the Bench in granting bail to the accused persons. As observed by the Supreme Court in the case of Union of India vs. Shiv Shanker Kesari, (2007) 7 SCC 798 , the satisfaction which we should reach for granting bail while considering Section 37 of the 1985 Act, the expression “reasonable grounds” would mean something more than prima facie grounds. As observed by the Supreme Court in the case of Union of India vs. Shiv Shanker Kesari, (2007) 7 SCC 798 , the satisfaction which we should reach for granting bail while considering Section 37 of the 1985 Act, the expression “reasonable grounds” would mean something more than prima facie grounds. “It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.” Two other authorities of the Supreme Court, Superintendent, Narcotics Central Bureau vs. R. Paulsamy, AIR 2000 SC 3661 and Intelligence Officer Narcotics Control Bureau vs. Sambhu Sankar and Another, (2001) 2 SCC 562 mandate strict adherence to the provisions of Section 37 of the 1985 Act. While allegations have been made on behalf of the petitioners in these cases of violation of mandatory provisions relating search and consequent seizure, following the judgment of the Constitution Bench of the Supreme Court in the case of Baldev Singh (supra), and the Referee Judge’s opinion in the case of Hussain & Another (supra) as also the opinion of a Coordinate Bench in the case of Rakibul Sk. @ Islam (supra),we cannot hold a mini-trail now to decide if the provisions of Section 50 of the 1985 Act have been breached or not. As regards the large body of authorities cited on this point, we do not think detailed analysis of individual petitions in the light of these ratios is warranted at this stage. Even if the materials in the case diary reveals prima facie breach of the provisions of Section 50 of the 1985 Act, sub-paragraph (5) of paragraph 55 in the case of Baldev Singh (supra), which we have reproduced earlier in this judgment, requires that prosecution ought to be given an opportunity to establish its case at the trial. On facts, in none of the petitions we have found the breach alleged to have been committed to be so notorious that at this stage we can anticipate that prosecution shall fail at the trial on the points raised before us. So far as the orders of Coordinate Benches are concerned in which similarly charged accused persons have been granted bail, we do not think these orders can form precedents. So far as the orders of Coordinate Benches are concerned in which similarly charged accused persons have been granted bail, we do not think these orders can form precedents. Grant of bail is discretionary power of the Court and exercise of such discretion requires examination of the materials in each case at the point of time the petitioners seek bail. 13. We shall now turn to the individual cases having regard to our discussion on points of law:- (i) In C.R.M. No. 15 of 2016, recovery of 376.650 Kgs of Ganja has been made from a truck and there is no material at this stage to show that there was personal search. Thus the question of breach of the stipulations of Section 50 of the 1985 Act does not arise in this case. Considering the materials disclosed in the Case Diary relating to involvement of the petitioners in the offence alleged, we do not think this is a fit case for grant of bail. (ii) The petitioners in C.R.M. No. 9297 of 2015 and C.R.M. No. 9370 of 2015 have been detained in connection with the same case, being NDPS Case No. 19 arising out of Lalgola P.S. Case No. 39 of 2015. Allegations against them is recovery of 600 grams of heroin from their joint possession, which was kept in the knots of their lungi. Materials in the Case Diary reveal that they had agreed to be searched by one Anjan Ghosh, who, the petitioners allege is a common police officer presented as a Gazetted Officer in several cases. In these cases, petitioners further allege that stock search and seizure witnesses have been used by the prosecuting agency. The petitioners also question legality of consent given by the petitioners to be searched in presence of a Gazetted Officer. But these are factors which would require examination at the trial. On the basis of materials disclosed in the Case Diary and having regard to the provisions of Section 37 of the 1985 Act, we do not think the petitioners ought to be enlarged on bail in these two cases. (iii) In C.R.M. No. 9843 of 2015, recovery is alleged to have been made of 21.5 Kgs of Ganja from a jute bag fastened by rope in the rear seat of a motorcycle. (iii) In C.R.M. No. 9843 of 2015, recovery is alleged to have been made of 21.5 Kgs of Ganja from a jute bag fastened by rope in the rear seat of a motorcycle. There is involvement of the petitioners in several other cases, including Kashipur P.S. Case No. 132/2012, Kashipur P.S. Case No. 220/2012 and Kashipur P.S. Case No. 64/2013, though none of these cases relate to offences under the NDPS Act, 1985. It was pointed out on behalf of the petitioners that petitioners have been enlarged on bail in all these cases and these are false cases. There is also allegation on the part of the petitioner of minor discrepancy in sample weight of the contraband article alleged to have been seized. But upon considering the materials disclosed in the Case Diary, it is not possible for us to come to the satisfaction in the manner contemplated in Section 37 of the 1985 Act. (iv) The petitioner in C.R.M. No. 10053 of 2015 was detained on 7th April 2015, on allegation of being in possession of 42 Kgs and 400 grams of Ganja, along with another person. Recovery is alleged to have been made from a nylon bag held in his hand. His earlier bail plea was rejected by this Court on 26th May 2015. At this stage, it is not possible for us to come to the conclusion that there has been any violation of the search and seizure procedure stipulated in Section 50 of the 1985 Act in his case. The Gazetted Officer before whom search and seizure operation was carried on in this case, however, was the Inspector-in-charge of the police station. The restrictive provisions of Section 37 of the 1985 apply in his case. (v) One Bhola Das is the petitioner in C.R.M. No. 10119 of 2015, and prosecution case is recovery of over 29 Kgs of Ganja from him. He was detained on 8th April 2015. Recovery is alleged to have been made from a motorcycle, which he was riding along with a co-accused. At this stage, there is no material to show there was search of his person leading to recovery of the contraband article. His earlier bail plea was rejected on 17th September 2015, in C.R.M. No. 8089 of 2015. Recovery is alleged to have been made from a motorcycle, which he was riding along with a co-accused. At this stage, there is no material to show there was search of his person leading to recovery of the contraband article. His earlier bail plea was rejected on 17th September 2015, in C.R.M. No. 8089 of 2015. In this case, there is material to show increase in weight of sample of the contraband article which was sent for chemical analysis. The judgment of the Delhi High Court in the case of Mohd. Ramzan (supra) and an order of a Coordinate Bench in C.R.M. No. 7487 of 2015 (Sanju Das @ Sanju Das vs. The State of West Bengal) decided on 8th September 2015 were relied on by the petitioner’s counsel in support of his prayer for bail. But, having considered the materials disclosed in the Case Diary pertaining to this case, we do not think on the basis of discrepancy of sample weight it would be possible for us to come to the satisfaction that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. (vi) Ketabul Sk. and Abdul Haque are the petitioners in C.R.M. No. 10801 and C.R.M. No. 10809 of 2015. There is allegation of recovery of 400 grams of heroin from them, which, it is alleged, were kept concealed by them in their ganjees (vest). They have been detained in the same case, being NDPS Case No. 58 of 2015 arising out of Raghunathganj P.S. Case No. 205 of 2015 dated 7th March 2015. In this case, Inspector-in-charge of Raghunathganj police station had remained present during search and seizure as the Gazetted Officer. He, however, was not part of the raiding team, as it appears form the materials disclosed at this stage. On consideration of the materials revealed from the Case Diary and having regard to the aforesaid restrictive provision of the 1985 Act relating to grant of bail, we do not think the petitioners ought to be enlarged on bail. Charges in this case have already been framed and trial has commenced. (vii) In C.R.M. No. 11719 of 2015, allegation is recovery of 24 Kgs of Ganja from joint possession of the petitioners and other co-accused persons and petitioners are under detention from 9th September 2015. Charges in this case have already been framed and trial has commenced. (vii) In C.R.M. No. 11719 of 2015, allegation is recovery of 24 Kgs of Ganja from joint possession of the petitioners and other co-accused persons and petitioners are under detention from 9th September 2015. The Gazetted Officer involved in this case is also a police officer, Deputy Superintendent of Police, Coochbehar. But allegation of recovery is from a travel bag and not from his person. We do not consider the deficiencies pointed out by the petitioners that to be good enough ground to come to a finding that there are reasonable grounds for believing that the petitioners are not guilty of the offence alleged to have been committed by him. (viii) C.R.M. No. 94 of 2016 is a case in which there is allegation of recovery of 600 grams of heroin from joint possession of the accused persons, concealed in their lungi knot arraigned in that case. The alleged recovery exceeds commercial quantity. In this case too, Anjan Kumar Ghosh, C.I. Lalgola is the Gazetted Officer before whom search and seizure is alleged to have been effected. But stand of the prosecution is that the petitioner had agreed to be searched before him. This question cannot be determined at this stage and we do not think this is a fit case for grant of bail. 14. These petitions are accordingly rejected. So far as the petition registered as C.R.M. No. 127 of 2016 is concerned, we shall deal with the same separately. Let the copies of the Case Diaries be returned to the learned Public Prosecutor. I agree – Aniruddha Bose and Sankar Acharyya, JJ.