Cyriac Joseph, J.
1. This petition has been filed under Section 438 of the Criminal Procedure Code for grant of anticipatory bail to the petitioner who apprehended arrest by officers under the respondents, namely, the commissioner of Central Bureau of Narcotics, Gwalior, Madhya Pradesh and the Assistant Commissioner (Customs), Inland Container Depot (ICD), Tughlakabad, New Delhi.
2. According to the averments in the petition, the respondents want to implicate the petitioner, Ved Prakash Goel in a case titled as ' Customs v. Daya Ram and Ors. ' filed in the Court of Ms.I.K. Kochar, Special Judge for NDPS cases, New Delhi. One Sanjeev Kumar Aggarwal (S.K. Aggarwal) who is one of the accused in the above mentioned case had tendered as statement before the officers of the Central Bureau of Narcotics that he had procured Acetic-Anhydride from the petitioner. The said Sanjeev Kumar Aggarwal retracted the said statement on the same day when he was produced before the magistrate. He categorically stated before the Magistrate that he had neither purchased any Chemical from anybody nor sold the same to any body. The petitioner was in judicial custody in the Central Jail from 23rd April, 1999 to 6th May, 1999 in connection with a case involving a petty offence. During the said period, the wife of the petitioner sent a telegram to respondent No. 1 on 24th April, 1999 intimating that the petitioner was in Jail No. 3, Central Jail, New Delhi and that he could be interrogated there. The said telegram was sent in response to a direction from respondent No. 1 to the petitioner to appear for interrogation on 26th April, 1999. However, respondent No. 1 did not seek interrogation of the petitioner during the period when he was in judicial custody. It is further stated in the petition that Sanjeev Kumar Aggarwal was known to the petitioner. However, they were not in talking terms since January, 1998. The petitioner was having business of various Chemicals in Simbhowli and Sanjeev Kumar Aggarwal also was having his business in the said area. Sanjeev Kumar Aggarwal had threatened the petitioner many times to close his business or to face dire consequences. Ultimately, the petitioner had to make a written complaint to the police station concerned on 29th June, 1998. It is alleged that though the residential premises as well as the godown of the petitioner were raised/searched by the respondents nothing incriminating was recovered. The petitioner gave a statement to the respondents on 1st July, 1997 stating that he was innocent and was never involved in any transaction of Acetic-Anhydride.
3. The respondents have filed a reply opposing the prayer for anticipatory bail. According to the averments in the said reply, the officers of the Directorate of Drugs Enforcement Administration, Dubai, UAE, intercepted and seized a consignment of Acetic Anhydride on 11th January, 1999 at Dubai in container No. KNLU3264693 which had been consigned in the name of M/s. Attar Filte Ltd., Sector 29, HUDA, Panipat and was consigned to M/s. Zuma Khan Azad and Faradee, Latif Market, Afghanistan, Kabul. It had been sent through ICD, Tughlakabad, New Delhi. In the follow-up investigations in respect of the export of the Acetic Anhydride seized at Dubai, the business premises and residential premises of the petitioner were searched on 7th April, 1999. At the time of the search the petitioner was not available. So the search was conducted in the presence of his wife and independent witnesses. As the petitioner was required to be interrogated for his involvement in the aforesaid case, summons were issued to him on 7th April, 1999 directing him to appear before the Officers of the Central Bureau of Narcotics, Gwalior on 12th April, 1999. However he did not appear. Then he was summoned to appear on 26th April, 1999 but he did not appear. Again he was summoned to appear on 14th June, 1999. Still he did not appear. It is alleged that the petitioner is trying to evade the enquiry/investigations.
4. It is also stated in the reply of the respondents that the name of the petitioner came into light during the voluntary statement tendered on 6th April, 1999 by Sanjeev Kumar Aggarwal under Section 67 of the N.D.P.S. Act. Sanjeev Kumar Aggarwal stated that the Acetic-Anhydride had been supplied to him by the petitioner. it is further stated in the reply that though Sanjeev Kumar Aggarwal has retracted his statement, the said retraction was an afterthought and was based on legal advice. It is contended that the value of the retracted statement can be appreciated only at the time of trial.
5. In their reply the respondents have denied the receipt of the telegram alleged to have been sent by the wife of the petitioner on 24th April, 1999 intimating that the petitioner was in jail at that time. However it is admitted that on 26th April, 1999, the petition had moved an application in the Court of Ms. O.K. Kochar, Additional Sessions Judge, New Delhi praying for a direction to the respondents to examine the petitioner in the case titled ' Customs v. Sanjeev Kumar Aggarwal and Ors. ' and that it was dismissed by the learned Additional Sessions Judge on 4th May, 1999. It is further stated that till 4th May, 1999, the petitioner was required only for the purposes of enquiry/investigations under Section 67 of the N.D.P.S. Act and that he was not an accused on that day and hence his application was rightly dismissed.
6. The respondents have also denied the claim of the petitioner that he was named by Sanjeev Kumar Aggarwal due to business rivalry. To disprove the claim of the petitioner, respondents have produced a report from the Police Station Simbhowli stating that the petitioner had not filed any complaint in the said police station against Sanjeev Kumar Aggarwal. It is stated that the petitioner is required for the purposes of enquiries/investigations under Section 67 of the N.D.P.S. Act as his name appeared in the disclosure made by accused Sanjeev Kumar Aggarwal in his voluntary statement tendered under Section 67 of the N.D.P.S. Act. It is also stated that the petitioner is to be confronted with the statement of Sanjeev Kumar Aggarwal. According to the respondents, the refusal of the petitioner to appear before the Central Bureau of Narcotics, Gwalior on 12th April, 1999 and 14th June, 1999 shows that the petitioner is not willing to join the enquiry/investigations in a case under the N.D.P.S. Act. It is contended that the grant of anticipatory bail to the petitioner would impede the even course of enquiry/investigation.
7. During the course of arguments the learned Counsel for the respondents stated that the petitioner was summoned by the respondents only for enquiry under Section 67 of the N.D.P.S. Act. As per Section 67 of the N.D.P.S. Act, during the course of any enquiry in connection with the contravention of any provision of the N.D.P.S. Act an authorised officer may (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any rule or order made there under; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; and (c) examine any person acquainted with the facts and circumstances of the case. According to the learned Counsel for the respondents, the petitioner is suspected to have committed offences punishable under Sections 25A and 29 of the N.D.P.S. Act and hence he was summoned for enquiry under Section 67 of the N.D.P.S. Act.
8. Section 25A of the N.D.P.S. Act reads thus:
' 25-A. Punishment for contravention of orders made under Section 9A. -- If any person, contravenes an order made under Section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees:
Provided that the Court may for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees.'
Section 9A of the N.D.P.S Act reads thus:
'Section 9-A. Power to control and regulate controlled substances- (1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to generality of the power conferred by Sub-section (1), an order made there under may provide for regulating by licenses, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition of any controlled substance.'
'Controlled substance' has been defined in Section 2 of the N.D.P.S. Act. As per the said Section 2(viia), 'controlled substance means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance'. In exercise of the powers conferred by Sub-clause (viia) of Section 2 of the N.D.P.S. Act, the Central Government has, by a notification S.O. No. 198(E) dated 24th March, 1993, declared Acetic Anhydride as a controlled substance for the purposes of the said Sub-clause. In exercise of the powers conferred by Section 9A of the N.D.P.S. Act, the Central Government has issued the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993. According to Clause 3 of the said order, every person who manufactures or distributes or sells or imports or exports or consumes any controlled substance shall maintain daily accounts of his activities in Form-1 or Form-2 as the case may be and the records of his activity shall be preserved for a period of two years from the date of last entry in the Register and he shall report to the Director General, Narcotics Control Bureau, Wing No. 5, West Block-5, R.K. Puram, New Delhi immediately regarding any loss or disappearance of the controlled substance under his control. Clause 4 of the said order contains the regulations regarding transport of controlled substances. Clause 5 of the said order stipulates that every person who sells a controlled substance to a buyer in a transaction of 100 kilograms and above shall sell so, only after the buyer establishes his identity by production of a document like industrial license or any registration certificate under any law or any other similar document which establishes his identity and upon a declaration being made of the purpose for which the controlled substance is being purchased.
9. According to the learned Counsel for the respondents, in view of the statement of Sanjeev Kumar Aggarwal that the seized Acetic-Anhydride had been supplied to him by the petitioner Ved Prakash Goel and in the light of the search conducted at the business and residential premises of the petitioner, the respondents suspect that the petitioner has violated at least Clauses 3, 4 and 5 the provisions of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993 issued by the Central Government under Section 9A of the N.D.P.S. Act and thereby committed offences punishable under Section 25A of the N.D.P.S. Act. The learned Counsel submitted that the respondents also suspect that the petitioner has committed an offence punishable under Section 29 of the N.D.P.S. Act which provides that whoever abets or is a party to a criminal conspiracy to commit an offence under Chapter IV of the N.D.P.S. Act (which includes Section 25A), shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for such offence. According to the learned Counsel, the above suspicions have been strengthened by the investigations so far conducted. As per Section 41(2) of the N.D.P.S. Act, if an Officer empowered under the said section 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 Chapter IV of the N.D.P.S. ct, such officer may, by himself or through an authorised subordinate officer, arrest such person. It was thereforee contended by the learned Counsel that, after the enquiry, if an officer empowered under Section 41(2) comes to the conclusion that there is reason to believe that the petitioner has committed an offence punishable under Chapter IV of the N.D.P.S. Act, the petitioner could be arrested exercising the power under Section 41(2). This contention of the learned Counsel is prima facie correct. In the light of the facts and circumstances of this case the respondents are entitled to summon the petitioner for enquiry under Section 67 of the N.D.P.S. Act. After the enquiry, if the respondents come to the conclusion that there is reason to believe that the petitioner has committed an offence under Section 25-A or/and Section 29 of the N.D.P.S. Act, he can be arrested by a competent officer. The question is whether the petitioner is entitled to an order of this Court directing the release of the petitioner in the event of his arrest.
10. Anticipatory bail is sought when there is an apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. Section 438 of the Criminal Procedure Code is a procedural provision which is concerned with the personal liberty of the individual who is entitled to the faith of the presumption of innocence since has is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. In Gurbaksh Singh v. State of Punjab, : 1980CriLJ1125 , a Constitution Bench of the Supreme Court has held thus:
'31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides ; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interests of the public or the State' are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh, : [1962]3SCR622 , which though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is an necessary for the survival of the society as it is for the egoistic purpose of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the Court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail'.
In paragraph 21 of the same judgment, the Supreme Court has pointed out as follows:
'To say that the applicant must make out a 'special case' for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a 'special case'. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise and judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. in fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.'
The Supreme Court has further held in the same judgment that an applicant for anticipatory bail under Section 438(1) of the Criminal Procedure Code must show that he has reason to believe that he may be arrested for a non-bailable offence and that such belief must be founded on reasonable grounds. It is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. The grounds on which the belief is based must be capable of being examined by the Court objectively because it is then alone that the Court an determine whether the applicant has reason to believe that he may be so arrested. Section 438(1) thereforee, cannot be invoked on the basis of vague and general allegations as if to arm oneself in perpetuity against a possible arrest. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. If an application for anticipatory bail is made to the Court, the Court must apply its own mind to the question and decide whether a case has been made out for granting such relief. The Supreme Court has further held that a blanket order of anticipatory bail should not generally be passed.
11. In Pokar Ram v. State of Rajasthan and Ors., : 1985CriLJ1175 , the Supreme Court has held that anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature. It has also been held that relevant considerations governing the Court's decision in granting anticipatory bail under Section 438 of the Criminal Procedure Code are materially different from those which should govern the decision on an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court. The Court has further held that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for grant of anticipatory bail.
12. In State v. Anil Sharma, : 1997CriLJ4414 , the Supreme Court has held that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the code of Criminal Procedure. The Court has further observed that success in the interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated and that very often interrogation in such a condition would reduce to a mere ritual. The Court rejected the argument that custodial interrogation is fraught with the danger of the person being subjected to third-degree methods, observing that such an argument can be advanced by all accused person. According to the Supreme Court it has to be presumed that responsible police officers would conduct themselves in a responsible manner and those entrusted with a task of disinterring offences would not conduct themselves as offenders. The Court has also reminded that the consideration which should weight with the Court while dealing with a request for anticipatory bail need not be the same as those which should weight while dealing with an application to release on bail after arrest.
13. While dealing with the question of grant of anticipatory bail in a case involving offences under the Foreign Exchange Regulation Act, in Dukhishyam Benupani, Assistant Director, Enforcement Directorate v. Arun Kumar Bajoria, : 1998CriLJ841 , the Supreme Court reiterated that blanket order fully insulating a person from arrest would make his interrogation a mere ritual and that considerations which should weight with the Court while dealing with a prayer for pre-arrest bail order are materially different from those in the case of a post-arrest bail application.
14. In the case of K.K. Jerath v. Union Territory, Chandigarh and Ors., : 1998CriLJ2555 , the Union Territory of Chandigarh desired to proceed against the petitioner K.K. Jerath under the provisions of the Prevention of Corruption Act, 1988. The petitioner applied to the High Court for grant of anticipatory bail. The application was rejected by the High Court on the ground that the Investigating Agency should be given a free hand to interrogate the petitioner and that if he is released on bail his acts might impede the investigation even resulting in tampering with the prosecution evidence directly and indirectly. The High Court took the view that the assurance of the petitioner to co-operate with the Investigating Agency in the interrogation would be a matter of mere ritual and that custodial interrogation would be more appropriate in the case. The petitioner field a Special Leave Petition in the Supreme Court contending that the matters should be examined from the constitutional angle bearing in mind the scope of Articles 20(2) and 21 of the Constitution of India. it was contended on behalf of the petitioner that though an accused person could be arrested it may not be appropriate to detain him in custody in every case and that when there is presumption of innocence in his favor until the charge against him is established, it would not at all be consistent with the philosophy of the Constitution to subject such a person to interrogation by application of psychological or ambient pressures much less physical torture. It was also contended that in law an accused person could be arrested and if arrested, he is entitled to bail unless detention is needed in public interest. However, the Supreme Court dismissed the Special Leave Petition after stating that in considering a petition for gnat of bail, necessarily, if public interest requires, detention of citizen in custody for purposes of investigation could be considered and the petition could be rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence.
15. In the light of the principles and parameters stated by the Supreme Court in the above mentioned judgments, I have considered the petitioner's request for anticipatory bail. Prima facie, it cannot be held that the proposed accusation against the petitioner appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the petitioner by having him arrested. As part of the investigations pursuant to the seizure of 9 M.T. of Acetic-Anhydride at Dubai, the business premises and the residence of the petitioner were searched and thereupon the petitioner was summoned for enquiry/investigation under Section 67 of the N.D.P.S. Act. According to the voluntary statement tendered by accused Sanjeev Kumar Aggarwal, the seized Acetic-Anhydride had been supplied to him by the petitioner. Though the said Sanjeev Kumar Aggarwal has later retracted his statement, the said retraction is alleged to be an afterthought and based on legal advice. As rightly contended by the learned Counsel for the respondents the evidential value of the retracted statement can be appreciated and weighed only at the time of trial. In the light of the statement of accused Sanjeev Kumar Aggarwal and the information and materials gathered during the search at the business and residential premises of the petitioner, the respondents suspect that the petitioner has committed at least offences punishable under Section 25A and 29 of the N.D.P.S. Act. The offence under Section 25-A of the N.D.P.S. Act is punishable with rigorous imprisonment for a term which may extend to 10 years and is also liable to fine which may extend to one lakh rupees, provided that, the Court may for reasons to be recorded in the judgment impose a fine exceeding one lakh rupees. The offence under Section 29 also attracts the same punishment. Considering the nature of the offences alleged against the petitioner, the circumstances leading to the allegation against him and the nature of the evidence to be collected in a case like this, I am not inclined to grant anticipatory bail to the petitioner. It is true that Acetic-Anhydride is not a narcotic drug or psychotropic substance and that it is only a controlled substance. Learned Counsel for the petitioner has contended that even if the petitioner has supplied a controlled substance like Acetic-Anhydride to Sanjeev Kumar Aggarwal it did not constitute any offence because it is not an offence to deal in or to be in possession of a controlled substance. However, learned Counsel for the respondents pointed out that the petitioner is suspected to have violated Clauses 3, 4 and 5 of the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 1993. Violation of the above mentioned provisions constitutes an offence punishable under Section 25-A of the N.D.P.S. Act. In the circumstances of this case, I am inclined to agree with the learned Counsel for the respondents that grant of anticipatory bail to the petitioner would impede the proper and effective investigation in the case. In my view, grant of anticipatory bail in this case will reduce the interrogation of the petition to a mere ritual. I am also not impressed by the argument that distinction must be drawn between cases involving violation of the provisions relating to narcotic drugs and psychotropic substances and cases involving violation of the provisions relating to controlled substances. Since the real nature and full extent of the offences will be known only after completion of the investigation, the distinction suggested by the learned Counsel for the petitioner cannot be considered at this stage of considering the application for anticipatory bail. It may also be pointed out that in Enforcement Officer, TED, Bombay v. Bherchand Tikaji Bora and Anr., : 2000(121)ELT7(SC) , while setting aside the order of the High Court granting anticipatory bail to an applicant who was alleged to have violated the provisions of the Foreign Exchange Regulation Act, the Supreme Court held that unless the applicant alleged and established in the materials that he was being unnecessarily harassed by the investigating Agency the Court would not be justified in invoking jurisdiction under Section 438 of the Cr.P.C. and granting anticipatory bail.
16. The petitioner cannot be granted anticipatory bail for another reason also. The petitioner is alleged to have committed offences under Sections 25-A and 29 of the N.D.P.S. Act which are punishable with rigorous imprisonment for a term which may extend to 10 years and also with fine which may extend to one lakh rupees. Accordingly to Section 37(1)(b) of the N.D.P.S. Act, notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence punishable for a term of imprisonment of five years or more under the said Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and 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. For convenience Section 37 of the N.D.P.S. is extracted below:
'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 a term of imprisonment of five years or more under this Act shall be released on bail or no 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.'
The provisions contained in Section 37(1)(b) are mae applicable and operative 'notwithstanding anything contained in the Code of Criminal Procedure, 1973'. The limitations on granting of bail specified in Clause (b) of Sub-section 1 of Section 37 are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force on granting of bail. thereforee, whatever be the scope and extent of the power of the Court under Section 438 of the code of Criminal Procedure, while considering an application for bail in the case of a person accused of an offence punishable for a term of imprisonment of five years or more under the N.D.P.S. Act, the power of the Court remains restricted by the limitations specified in Clause (b) of Sub-section 1 of Section 37 of the N.D.P.S. Ac.t Hence in such a case the Public Prosecutor should be given an opportunity to oppose the application and, if the Public Prosecutor opposes the application, the Court shall not grant bail unless the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Bail cannot be granted on any other ground in view of the limitations imposed by the statutory provisions contained in Section 37 of the N.D.P.S. Act. Admittedly the petitioner is alleged to have committed an offence under the N.D.P.S. Act for which the punishment can be rigorous imprisonment for a term which may extend to ten years. It means that the punishment for the said offence can be imprisonment for a term of five years or more. Hence the petitioner's application for grant of anticipatory bail is governed by the limitations specified in Clause (b) of Sub-section 1 of Section 37 of the N.D.P.S. Act. The Public Prosecutor has been given notice in the matter and he has strongly opposed the grant of anticipatory bail to the petitioner. From the materials on record and the circumstances of the case it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the offences alleged against him and that he is not likely to commit any offence while on bail. thereforee, the petitioner cannot be granted anticipatory bail in view of the provisions contained in Section 37(1)(b) of the N.D.P.S. Act. In my view the provisions contained in Section 37(1)(b) of the N.D.P.S. Act are applicable in the case of regular bail as well as anticipatory bail. The non obstinate clause in Section 37 operates against all provisions in the Code of Criminal Procedure including Section 438 which confers power on the High Court and the Court of Sessions to make a direction that in the event of his arrest the person shall be released on bail. Hence, it is not possible to consider an application under Section 438 of the Cr.P.C. ignoring the provisions contained in Section 37(1)(b) of the N.D.P.S. Act.
For the reasons stated above the application is dismissed.
17. Application dismissed.