JUDGMENT : (Divyesh A. Joshi, J.) 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. The present successive application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular bail in connection with the FIR being C.R. No.III-05 of 2021 registered with the ATS Station, Ahmedabad of the offence punishable under Sections 8(C), 22 (C), 23 (C), 25 and 29 of the NDPS Act. 3. The case of the prosecution, in brief, is that on the basis of the secret information, the police authority raided the house of the accused No.1 at Morbi, where the accused Nos.1 and 2 were present in the house and accordingly search was conducted of the said house, upon which, Heroin drug of 118.650 kilogram in 15 different packets were found and seized by the police, pursuant to which, the applicant-accused, along with the other co-accused, came to be arrested. Hence, the impugned FIR. 4. Learned advocate Mr. S.D. Mansuri for the applicant submits that the applicant-accused was arrested on 15.11.2021, and since then he is in judicial custody. He further submits that the investigation has already been completed and charge-sheet has also been filed. Learned advocate Mr. Mansuri also submits that the investigation in the present case was taken over by the NCB Team and the charge-sheet being C.R. No.NCB/AZU/CR-06/2022 has been filed by the NCB. Learned advocate Mr. Mansuri submits that the applicant-accused has not played any role in the commission of the offence either directly or indirectly, and even he was not present at the place of offence. Moreover, there is no recovery or discovery of any Muddamal article at the instance of the applicant-accused. Learned advocate Mr. Manusuri further submits that, in fact, there are in all total 119 persons have been cited as witnesses by the prosecution in the charge-sheet papers, however, as of now, trial has not been commenced and charges have also not been framed and the applicant- accused is behind the bar since 2021, i.e., for more than three years. Therefore, considering the period of incarceration already spent by the applicant-accused in the judicial custody, coupled with the fact that the charges have yet not been framed, he may be enlarged on bail. Therefore, considering the period of incarceration already spent by the applicant-accused in the judicial custody, coupled with the fact that the charges have yet not been framed, he may be enlarged on bail. That apart, the other co-accused persons, having graver role than that of the applicant-accused have already been enlarged on bail by this very Court and, therefore, on the ground of parity also, he is entitled to be released on bail. Learned advocate Mr. Mansuri also submits that the applicant-accused does not have any past antecedents either of similar nature, or else. 5. Learned advocate Mr. Mansuri further submits that the Investigating Agency has not followed the requisite procedure as prescribed under the statute for invoking the provisions of the NDPS Act, more particularly, the provisions of Sections 42 and 52(a) of the NDPS Act. He submits that it is mandatory requirement as prescribed under the statute so far as the NDPS offences are concerned, that after the registration of the FIR, the concerned investigating officer has to inform/intimate about the occurrence of the incident to the higher authority in writing. However, if the contents of the charge-sheet is taken into consideration, it appears that after carrying out the search operation, the concerned investigating officer informed the higher authority by sending a message through whats app and, therefore, there is a clear cut breach of the provisions of Section 42 of the NDPS Act. He further submits that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. He also submits that the contraband Heroin was not in the "conscious possession" or "constructive possession" of the applicant but was recovered from different packets lying in the house. The applicant-accused did not have any knowledge about the said packets containing the contraband article lying in the house. There is no evidence against the applicant-accused to implicate him with the alleged offence. The applicant-accused does not have any past antecedents and he is not the habitual offender. Learned advocate Mr. The applicant-accused did not have any knowledge about the said packets containing the contraband article lying in the house. There is no evidence against the applicant-accused to implicate him with the alleged offence. The applicant-accused does not have any past antecedents and he is not the habitual offender. Learned advocate Mr. Mansuri, in the last, submits that the applicant-accused has been granted respite several times, and on all the occasions, he has surrendered before the jail authority in time, and has never committed a breach of the order of the court or has shown any disrespect towards the court’s order. 6. In such circumstances, referred to above, learned advocate Mr. Mansuri prays that there being merit in this application, the same may be allowed and the applicant-accused may be released on bail on any suitable terms and conditions. 7. Learned advocate Mr. Ankit Shah appearing for the respondent No.2 has opposed grant of regular bail looking to the nature and gravity of the offence. Learned advocate Mr. Shah submits that the role of the present applicant-accused is clearly found out from the charge-sheet papers. He also submits that total 118.650 Heroin has been found from 15 different packets, which were lying at the house of the accused No.1, where the applicant-accused was also present. Learned advocate Mr. Shah further submits that a huge commercial quantity of contraband substance Heroin worth Rs.548 Crores was found from the conscious possession of the applicant-accused and, therefore, the rigors of Section 37 of the NDPS Act would come into play. He also submits that so far as the compliance of the provisions of Sections 42 and 52a of the NDPS Act are concerned, the search of the applicant-accused as well as the house was required to be carried out in the presence of the gazetted officer, and from the materials placed on record by the investigating officer, it clearly appears that the search was carried out in the presence of the gazetted officer, i.e, the Mamlatdar and, therefore, it cannot be said that there is any breach of statutory provisions of law at the end of the investigating officer. There are also all possible chances that the applicant-accused may run away from the trial proceedings and, therefore, to secure his presence, he may not be enlarged on bail. There are also all possible chances that the applicant-accused may run away from the trial proceedings and, therefore, to secure his presence, he may not be enlarged on bail. Thus, considering the fact that huge quantity of 118.650 kilograms of Heroin is found from the conscious possession of the accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 8. The learned APP appearing on behalf of the respondent- State has also opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether discretion should be exercised in favour of the applicant herein. 10. In light of the aforesaid, it is pertinent to refer and analyze the provisions and objective of the NDPS Act. Section 37 of the Act reads as under: “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 be 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, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 11. In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable. In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable. The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the two-fold conditions prescribed under the Section have been met. The conditions include: a) hearing the Public Prosecutor; and b) Satisfaction of the court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature. 12. The fetters on the power to grant bail does not end here, they are over and above the consideration of relevant factors that must be done while considering the question of granting bail. The court also needs to be satisfied before grant of bail about the scheme of Section 483 of the BNSS. Thus, it is evident that the present section limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has been prescribed under the Code. 13. The contours of Section 37 of the Act have been analysed by the Hon’ble Supreme Court in the case of Union of India v. Ram Samujh (1999) 9 SCC 429 . In this case, the Apex Court adjudged the validity of the order on bail granted by the High Court in a case registered under the Act. The Hon’ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as: "6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus: "Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt."(emphasis supplied) 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt."(emphasis supplied) 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [ (1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine." 14. Thus, what is evident from the above is that the offences prescribed under the Act are not only a menace to a particular individual but to the entire society especially, the youth of the country. Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a substantial chunk of the population and trend has been growing over the years. Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a substantial chunk of the population and trend has been growing over the years. Thus, to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court must stay mindful of the legislative intent and mandate of the Act while considering the question bail in such matters. 15. As far as condition under Section 37(b)(i) is concerned, there is no ambiguity in its interpretation. It gives effect to the doctrine of audi alteram partem. Since the crime is an act against the society, the legislature has contemplated that the Public Prosecutor must be given an opportunity to oppose a bail application under the Act. Additionally, under Section 37(b) (ii) of the NDPS Act, the court is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have, reasonable grounds’ for such satisfaction. 16. The term ‘reasonable grounds’ under Section 37(b)(ii) has been interpreted by the Hon’ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 . It was a case where an appeal was preferred against the order granting bail under the NDPS Act by the High Court. The prosecution alleged that the raiding party seized nearly 400 kgs of poppy straw from the possession of the accused therein. The special court rejected the bail while the High Court granted the bail on the ground that the recovery was not from the exclusive possession of the accused, but other family members were also involved. The Supreme Court set aside the order granting bail. In this context, it interpreted ‘reasonable grounds’ under Section 37 of the Act, as under: 7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. The Supreme Court set aside the order granting bail. In this context, it interpreted ‘reasonable grounds’ under Section 37 of the Act, as under: 7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means 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 in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:25.01.2022 17:34:17 reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable". 17. Thus, the term ‘reasonable grounds’ is not capable of any rigid definition, but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts. However, the standard of satisfaction in such cases is more than mere satisfaction on a prima facie opinion. Thus, the court before exercising its discretion for granting the bail must record the reasonable grounds before granting bail to the accused. 18. The Supreme Court in the case of Union of India v. Md. Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with respect to Section 37 of the Act. After analysing the previous decisions of the Hon’ble Supreme Court, the court prescribed the following test for granting bail under Section 37 of the NDPS Act: "20. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed." 19. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed." 19. Thus, the court must be conscious about the mischief that is sought to be curbed by the Act and the consequences that might ensue if the person accused of the offence under the Act is released on bail. The court ought to be satisfied on the basis of reasonable grounds discernible from the facts and circumstances that the applicant is not guilty of offences that the accused is charged with. Additionally, the court also needs to be satisfied that the person so released will not commit the offence while being on bail. Both the conditions are interlinked because the legislature intends that in cases where there is a possibility of commission of this grave offence under the Act, the person need not be released. It is so because if the person is released, he is most likely to repeat the offence, thus impacting the society at large. Thus, to not give any leeway to the accused, the court has to be satisfied about the dual conditions on reasonable grounds. 20. In the instant case, the case of the applicant and his role in the entire sequence of events is not as simple as has been projected during the entire course of arguments by learned counsel for the applicant. He is not merely arrested for the small quantity of contraband but has been implicated for his role as being a part of a larger drug trafficking. Here, in the present case, the applicant is charged for commercial quantity weighing 108.650 kg and, therefore, his bail application needs to be decided as per Section 37 of the Act. Moreover, all requisite procedures had also been followed as per the law and, thereafter, the accused persons came to be arrested. At the time of granting bail, the court has to consider the role played by the applicant-accused in the commission of the offence as well as gravity of offence and in the present case, considering the role played by the applicant in the offence, as the act of the applicant would effect to the youth of the nation, I am of the opinion that the present application is required to be rejected. 21. 21. Proceeding to the application of Section 37 in the instant matter, the Public Prosecutor has been heard who has vehemently opposed the bail petition with reasons. With respect to the second condition prescribed thereunder, this Court is satisfied that there are no reasonable grounds, based on the analysis of the provision in the foregoing paragraphs and its application to the facts of the case, for this Court to believe that the applicant is not guilty of the offence that he has been charged with. Since this court is not satisfied on this ground, there is no question to consider that the accused will not commit the offence while on bail. 22. In view of the aforementioned facts, circumstances, analysis and reasoning, keeping in mind the legal provisions and the underlying intent as well as the mischief that is sought to be curbed by the NDPS Act, this Court is of the considered view that the conditions stipulated under Section 37 of the Act are not satisfied and there are no ‘reasonable grounds’ to presume the accused as not being guilty of the offence. Thus, this Court is not inclined to allow the instant bail application as being devoid of any merit and hence, liable to be rejected. 23. Accordingly, the instant bail application stands rejected. Rule is discharged.