A.S. Nehra, J.
1. This is a petition filed by the petitioner under Section 439, Code of Criminal Procedure, for grant of bail during the pendency of the trial on First Information Report No. 130 dated 15-4-1992 registered at Police Station, Samalkha, under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the Narcotic Act). The first information report which was registered on the basis of ruqa sent by Pirthi Singh, MHC, reads as under:--
Today, I along with S.I. (S.H.O.), H. C. Dharambir, 80, Constable Balraj Singh were on patrolling duty on Government jeep No. HR-05/1892 driven by H. C. Rati Ram. We were going towards Samalkha. When we reached near the turning point Kiwana near G. R. College, Samalkha, a person identified as Ram Sarup alias Sarup Chand son of Shri Buli Ram, Sunar by caste, r/o Samalkha, met us. After seeing the police jeep, he sat himself for urinal purposes. He was arrested on the basis of suspicion. He was told that he has in possession of any intoxication article. I enquired from him whether he was willing to give search before some gazetted officer. Accused told that he has no objection if the search was taken by me, no need to go before a gazetted officer for search. 1 searched his clothes. The accused had in his front packet some quantity of opium which was wrapped in a wax paper. On weighment, it was found to contain 250 grams. From this, 25 grams of opium was separated as sample and put in an empty tin box. Remaining opium and sample packet were separately sealed. The samples were taken into police custody. The accused could not produce any licence or permit for this opium. The accused has committed the offence under Section 17, N.D.P.S. Act by having 250 grams of opium. Information is sent through Sh. Balraj C.760 for registration of case against the accused. I am busy in investigation.
2. The petitioner filed an application for releasing him on bail, before the Additional Sessions Judge, Panipat, which was dismissed on 20-4-1992. Hence, the petitioner has approached this Court for grant of bail to him, through this petition.
3. According to the prosecution story, the petitioner was found in possession of 250 grams of opium.
4. The learned Counsel for the petitioner, Mr. R. S. Chahar, has submitted that a bare reading of the first information report shows that no offence under Section 17 of the Narcotic Act was made out against the petitioner and that he is an innocent person and has been falsely involved due to personal enmity with the local police.
5. The learned Counsel for the petitioner has further submitted that the trial of the case is likely to take a long time and no useful purpose will be served by keeping the petitioner in judicial custody, because only 250 grams of opium are alleged to have been recovered from the petitioner. Not only that, he goes on to say that the mandatory provisions of the Narcotic Act have not been complied with; that the alleged recovery of opium was not effected before a gazetted officer or with his consent and that, therefore, the petitioner is entitled to be acquitted. In support of his argument he has relied upon Amrit Singh v. The State of Haryana, 1990 (1) CLR 437 and Kuldip Singh v. State of Haryana, 1989 Chand Cri Cas 183. In any case, these questions of fact, canvassed before me by the learned Counsel for the petitioner, can be gone into only at the time of the trial. Compliance or non-compliance of Section 50 of the Narcotic Act will also have to be determined at the time of the trial. The observations in Amrit Singh's case (supra) and Kuldip Singh's case (supra) are thus, of no help to the petitioner as the Narcotic Act is a special enactment and Section 37 of the said Act restricts the power of the High Court to grant bail except when the conditions prescribed under that section are fulfilled. The conditions enumerated therein are as follows :--
Section 37. Offences to be cognizable and non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act No. 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 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.
6. The learned Counsel for the petitioner has further stated that the powers of this Court under Section 439, Code of Criminal Procedure, are not in any manner curtailed except that these powers have to be exercised with embargo and conditions as laid down by Section 37 of the Narcotic Act. In support of his argument, he has relied upon a judgment of this Court in Criminal Misc. No. 1104-M of 1992 (Baram Khan alias Chhotu Khan v. State of Haryana) decided on 26-2-1992.
7. Mr. Prem Singh Kadian, Deputy Advocate General, Haryana has opposed the prayer for bail. He has submitted that Section 37 of the Narcotic Act, as amended, starts with a non obstante clause stating that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. He has further submitted that the powers of the High Court to grant bail under Section 439, Code of Criminal Procedure, are subject to the limitations contained in the amended Section 37 of the Narcotic Act and the restrictions placed on the power of the Court under the said section are applicable to the High Court also in the matter of granting bail.
8. The learned Deputy Advocate General, Haryana, appearing for the State of Haryana, has further argued that the petitioner cannot be granted bail unless 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.
9. The learned Counsel for the State has further argued that the judgment rendered by this Court in Criminal Misc. 1104-M of 1992 (Baram Khan alias Chhotu Khan v. State of Haryana) decided on 26-2-1992, does not lay down a correct law and, therefore, the same cannot be relied upon, in view of the decision of the Supreme Court in Narcotic Control Bureau v. Kishan Lal, AIR 1991 SC 558 : (1991 Cri LJ 654).
10. After hearing the learned Counsel for the parties, I hold that the powers of the High Court to grant bail under Section 439, Code of Criminal Procedure, are subject to the limitations contained in the amended Section 37 of the Narcotic Act and the restrictions placed on the power of the Court under the said section are applicable to the High Court also in the matter of granting bail. The judgment of this Court, relied upon by the petitioner in Criminal Misc. No. 1104-M of 1992 (Baram Khan alias Chhotu Khan v. State of Haryana) decided on 26-2-1992, has not laid down a correct law and cannot be relied upon in view of the judgment of the Supreme Court in Narcotic Control Bureau's case (supra). In this bail application, I do not find any reasonable ground for believing that the petitioner is not guilty of the offence under Section 17 of the Narcotic Act. I also do not see any reasonable ground for believing that the petitioner is not likely to commit such offence while on bail. The petition is accordingly dismissed and the prayer for bail to the petitioner is declined.