Mukul Gopal Mukherji, J.
1. In the present application, for bail several interesting questions of law have been argued by the learned members of the Bar.
2. Mr. Milan Kumar Mukherjee, learned Advocate for the petitioner brought to our notice the fact that the arrest of the petitioner was made on 22.2.91 and there was an order of remand till 8.3.91. Even though Mr. Mukherjee contended that the remand was not permissible in the eye of law in view of the fact that 12.4.91 was fixed as the next date, we find that the said date was only for arrival for service return as regards issue of warrant of arrest upon other accused Munja Bibi. Mr. Mukherjee further contended before us that on the expiry of 8th of March, 1991 it was an incumbent duty on the part of the learned Magistrate to have forwarded the accused to the Special Court having jurisdiction, since a remand beyond fifteen days was not permissible in law. It is indeed a fact that after the accused is forwarded to the Special Court having jurisdiction, the Special Court may exercise the same powers which a Magistrate has Under Section 167 of the Code of Criminal Procedure, 1973. Again it is the Special Court which may upon the submission of the police report of the facts constituting an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 or upon a complaint made by an officer either of the Central or of the State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. Mr. Mukherjee drew our attention to Sub-section (3) of Section 36A of the Act by contending that the special powers of the High Court regarding bail Under Section 439 of the Code of Criminal Procedure, 1973 were not affected thereby.
3. Mr. Mukherjee cited before us a Supreme Court judgment in Rajni kant v. Intelligence Officer, Narcotic Control Bureau, New Delhi reported in : 1990CriLJ62 for the proposition that an order for release on bail under proviso (a) to Section 167(2) Cr. P.C. may properly be permitted as an order on default. It is a release on bail on the day of the prosecution in filing charge sheet within the prescribed period. He submitted that the right to bail Under Section 167(2) proviso (a) thereto is absolute and it does not depend upon the Court's discretion. If the Investigating Agency fails to file charge sheet before the expiry of 90 days or 60 days, as the case may be, the accused in custody should be released on bail and at that stage the merits of the case are not to be examined. In fact the Magistrate has no power to retain a person beyond the stipulated period of sixty days or ninety days, as the case may be, and he has to pass an order of bail and communicate the same to the accused to that the accused may in his turn furnish the requisite bail bonds. It was however, held in this case that the accused cannot claim any special right to remain on bail and if the investigation reveals at a later stage that the accused has committed a serious offence and a charge sheet is filed later on, the bail granted previously under proviso (1) to Section 167(2) Cr. P.C. could still be cancelled. It was observed in Raghubir Singh v. State of Bihar reported in : 1987CriLJ157 that where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days, the prosecution may seek to have the bail cancelled on the ground that the accused has committed a non-bailable offence, after the defect is cured by the filing of the charge sheet and that if the prosecution shows that it is necessary to arrest him and commit him to custody, the Court may cancel the previous bail order since it was not a release on bail on merits but on the basis of an order on default and the previous order enlarging the accused on bail could be rectified for such special reasons after the defect was cured.
4. Mr. R. N. Chakravorti, the learned Advocate who appeared in this matter for the State drew our attention to a Division Bench judgment of our Court in Criminal Misc. Case No. 2501 of 1990 Biswanath Agarwalla v. The State where a reference to this particular decision in : 1990CriLJ62 Rajnikant v. The Intelligence Officer, Narcotic Control Bureau, New Delhi was made but the Division Bench of this Court held that the ratio of the said judgment had no application to the facts of the said case where the accused being possessed of some brown sugar powder stated to be Heroine was arrested on 20.3.90 and he moved an application for bail on 21.6.90 before the lower court which stood rejected, and he came up to this Court with a prayer for bail contending inter alia that he was for more than ninety days in jail and was not granted bail. The Division Bench comprising of Padma Khastgir and H. Das, JJ. took into consideration the proviso to Section 167(2) of the Code of Criminal Procedure and held that in view of the provision of Section 37(2) of Narcotic Drugs and Phychotropic Substances Act, 1985 taken in conjunction with Section 4(2) of the Code of Criminal Procedure, the special enactment will prevail for the time being in force. Even with regard to such matters of the right of an accused to be released on bail following an earlier decision of the Supreme Court reported in : AIR1975SC1465 the Division Bench held that the benefit Under Section 167(2) of the Code of Criminal Procedure was not available in a case where the investigation was started before the new Code came into force, Their Lordships of the Supreme Court observing inter alia 'The legislature seems to grant no discretion to the Code and to make it obligatory for it to release the accused on bail'. While considering the special provision as contained in Terrorist Disruptive Activities Prevention Act, 1987 and this case law decided in 1988 Cr. LJ 1605, the Division Bench held that unless it is manifest that the investigating authority has been using the special provision contained in the Narcotic Drugs and Phychotropic Substances Act as a licence to hold in custody the accused without a trial for an indefinite period and when on the other hand the investigation was proceeding bona fide and the seized brown sugar was sent for chemical analysis to the Forensic Science Laboratory and a report was received by the investigating authorities to that effect, the Court did not find any material to come to the conclusion that the investigating authorities was holding the investigation in an arbitrary manner so that the petitioner was entitled to bail.
5. Mr. Balai Ch. Roy, Ld. Senior Advocate, who appeared in this matter as Amicus Curiae, submitted that there is a non-obstante clause operating in respect of provisions of Section 37 of the Act that in effecting fetters application of provisions of Section 167 of the Code of Criminal Procedure, since the said provision is not with regard to the granting of bail, but is a right independent of the powers of the High Court Under Sections 437 and 439 Cr. P.C. where the Magistrate or the Special Court is duty bound to release an accused beyond the statutory period of 90 days, if the investigation is not complete within the stipulated time. Mr. Roy cited before us the decision in Aswini Kumar Ghose and Anr. v. Arabinda Bose and Anr., reported in : [1953]4SCR1 for the proposition that the enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously ; for even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. In The Dominion of India and Anr. v. Shrinbai A. Irani and Anr. reported in : [1955]1SCR206 , it was held that although ordinarily there should be a close approximation between the non-obstante claluse and the operative part of section, the non-obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof, a non-obstante clause cannot cut down that construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment. In Union of India and Anr. v. G. M. Kokil and Ors. reported in : (1984)IILLJ20SC , it was held that it is well known that a non-obstante clause is a legislative device which is usually employed to give over-riding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. In the facts of the said case, the non-obstante clause in Section 70 of the Bombay Shops and Establishment Act, which contained a provision, inter alia, to the effect that 'notwithstanding anything in that Act' was held to mean, 'notwithstanding anything to the contrary contained in that Act and as such, it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions of the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions, just as because of the non-obstante clause the Act is applicable even to employees in the factory who might not be 'workers' Under Section 2(1), the same non-obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. It was found in the facts of the said case, that the Labour Court was right in taking the view that because of the non-obstante clause, Section 64 read with Rule 100 itself would not apply to the respondents- . employees and they would be entitled to claim overtime wages Under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishment Act, 1948. Mr. Roy contended that the word, 'notwithstanding' means as explained by Corpus Juris Secundumal, Volume LXVI, 'without prevention or obstruction from or by, inspite of. It has been held to be equivalent to 'nevertheless'. Mr. Roy in ultimate analysis contended that the proviso to Section 167(2) Cr. P. C. is an independent right of the accused to be released on bail, independent of Section 437 or Section 439 i.e. independent of the provisions of Chapter XXXIII. Mr. Roy pointed out that the power of remand in respect of an accused which is there Under Section 167 Cr. P. C. is circumscribed by the proviso which contained Explanation I that notwithstanding the expiry of the period of 90 days, the accused shall be detained in custody, so long he does not furnish bail.
6. Let us in the light of these three judgments examine the effect of non-obstante clause of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The non-obstante clause operates in respect of not only the provision relating to bail as contained in the Code of Criminal Procedure but in respect of all provisions as contained in Cr. P. C. itself, so as to include the provision of Section 167 taken as a whole, where even though the statutory period of 90 days is over, unless bail is furnished the accused does not get liberty to come out of detention in custody. We find in the facts and circumstances of the present case, that there was a remand till 8.3.91 and thereafter there was no specific order passed by the Court below except on 27.3.91 when it received the copy of this Court's order calling for the records and accordingly, transmitted the record through a special messenger to this Court. The application for bail was moved before this Court for the first time on 15.3.91 after it was presented on 6.3.91, even prior to the expiry of the period till 8.3.91. That being so, we do not find any illegality for the Court below not having passed an order of remand till 8.3.91 but then, it was an incumbent duty on the part of the Ld. Magistrate to send the matter to the Special Court thereafter. In the Bombay High Court Judgment in Mrs. Susila Bala Nair v. Intelligent Officer, Narcotic Control Bureau Bombay, it was held that the Magistrate had no power to grant bail at all and it is only the Special Court that can exercise the power which the Magistrate make Under Section 37 of the Act in relation to an accused who has been forwarded to the Court Under Section 36A(1)(b) after Section 37 was amended and it is now clear that no bail can be granted unless Public Prosecutor has been given an opportunity to oppose the application of such release and where P. P. opposes the application, unless the court is satisfied that there are reasonable grounds for believing that the accused is not likely to commit any offence while on bail. In other words, it is only where the Court is satisfied that there is no material whatsoever to hold that the accused is guilty of an offence under this Act, then only a bail can be granted if there is some material having regard to the provision of Section 37, ordinarily no bail can be granted to the accused under this Act. Because of the non-ob-stante clause operating in the field, it becomes clear that whatever be the provisions of the Code of Criminal Procedure, it is only to the extent that it is provided under the Narcotic Drugs and Psychotropic Substances Act that the accused is to be severely dealt and is not ordinarily to be allowed to be released on bail, it must necessarily be held that to the extent that there is no application of the provisions of the Code of Criminal Procedure to this effect to the extent that the accused cannot insist upon any relief. The Bombay High Court went further to hold that if one reads the provisions of Section 36A and 37 together and particularly, Sub-section (2) thereof, it becomes clear that the proviso to Sub-section (2) of Section 167 Cr. P. C. will have no application in such cases where a person had been charged under any of the offences falling within the scope of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Bombay High Court even went so far as to observe the object and reason behind passing the recent amendments to this Act. It may not be out of place in this context to quote the same:
'In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substances Act, 1985 provides the deterrent punishments for drug trafficking offences. 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 enforce ment of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strenthen it, has been felt'.
7. The Bombay High Court was conscious of the fact that the powers of the High Court Under Section 439 of the Code of Criminal Procedure have not been taken away for the purpose of granting of bail. But then, it thought that such powers cannot be so exercised to defeat the object of the Act and a technical plea shall be no ground for undeserving liberty under this Act, The Jammu and Kashmir High Court in Darshan Singh v. The Superintendent, Customs (Prevention) R. S, Pora reported in 1990 (2) Crimes 471 also held that the provisions of Section 167 Cr. P. C. are not applicable to a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 as the accused is involved in a complaint filed by the respondent and no investigation is being conducted under Chapter XIV of the Criminal Procedure Code. Our Calcutta High Court has of course in two of its judgments, contrary to the earlier Division Bench Judgment as cited above, held a contrary view. In Kalam Khan v. The State reported in 1990 Cal. Crl. L.R. (Cal) 306 Shamsuddin Ahmed and Amal Kanti Bhattacharjee, JJ. held that the Magistrate has no power to grant bail to an accused of an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 save the power to remand him under the Act and to refer to the Special Court constituted for the purpose, if the Magistrate considers his detention necessary beyond the maximum period of 15 days. But then, the said Division Bench held that the accused-petitioner should be released forthwith just because there was remand beyond 15 days. In another decision by the same Division Bench in Md. Abdul v. The State of West Bengal reported in 1990 Cal. Crl. L.R. (Cal) 298, the court was of the view that the powers enjoyed Under Sections 167, 437 and 439 are distinct and different in application. Non submission of charge sheet within the prescribed time enlarge an accused on bail. Non submission of charge sheet within due time is not a condition precedent to be enlarged on bail Under Sections 437 and 439 Cr. P. C. In absence of submission of charge-sheet and the cognizance not being taken by the Special Judge, provisions of Section 167 of the Code of Criminal Procedure have to be complied with. But where Clause (c) to Section 36A(1) is attracted, Section 167 of the Criminal Procedure Code will apply in full force. However, if the Special Judge takes cognizance in absence of police report, provisions of Section 167 are inapplicable. It is for the prosecution to decide when and how they will ask the Special Judge to take cognizance of the offence complained of. It was however, decided in that case that none but the Special Judge is entitled to grant bail as he was vested with power Under Section 437 Cr. P. C. The Special Judge although a Sessions Court, is not clothed with power to grant bail Under Section 439 Cr. P. C. Accordingly, when the Special Court exercises power to grant bail it is bound by Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and it has to take into account the conditions laid down in Clauses (i) and (ii) of Clause (d) of Section 37(1) and if it is satisfied that those conditions have been fulfilled, it can release a person on bail Under Section 437 of the Code of Criminal Procedure. Since no exception has been made in application of the restriction imposed by Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, this will also bind the High Court and in cases of granting bail, the High Court will have to satisfy itself when the learned Public Prosecutor opposes the application for bail that there are reasons for believing that the petitioner is not guilty of the offence and that he is not likely to commit any offence while on bail. The ultimate order that was passed by the Court was that Section 167 Cr. P. C. being applicable, the petitioners were directed to be released on bail, subject to the satisfaction of the learned Chief Judge, City Sessions Court, Calcutta,
8. We are afraid in view of the recent pronouncement of law by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and Ors. reported in : 1991CriLJ654 , none of the views as expressed earlier to the contrary by our Court or by a different High Court making the provision of Section 167(2) proviso available, would be good law on the point. In this case the Supreme Court held, inter alia, that the power to grant bail under any of the provisions of the Code of Criminal Procedure should necessarily be subject to the condition mentioned in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, since Section 37 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. The Narcotic Drugs and Psychotropic Substances Act being a special enactment and having been enacted with a view to making stringent provisions for the control and regulation of operation relating to Narcotic Drugs and Psychotropic Substances, and the provision of Section 37 being in negative terms limiting the scope of the applicability of the provisions of Cr. P. C. regarding bail, it cannot be said that the High Court's powers to grant bail Under Section 439 Cr. P. C, are not subject to the limitation mentioned Under Section 37 of the Narcotic Drugs and Psychotropic Substances, Act, 1985. The non-obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail., and in case of any inconsistency between Section 439 Cr. P. C. and Section 37 of NDPS Act, Section 37 prevails. The provisions of Section 4 Cr. P. C. also make it clear that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under the Code of Criminal Procedure should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.
9. We have already held that even though by virtue of application of Explanation I to proviso to Sub-section (2) of Section 167 Cr. P. C., the accused ipso facto is not released from the case, but what she has to obtain, is a right to obtain a bail and she is not automatically released on bail unless she does furnish bail. In view of such restriction as imposed by virtue of the pronouncement of law given in the recent Supreme Court Judgment on the law on the point which we are bound to follow under Article 141 of the Constitution, we are of the opinion that we have no powers to grant bail to the accused in the facts and circumstances of the case and that Section 167 Cr. P. C. would not in any manner be called into play.
10. Before we dispose of the present application by rejecting the prayer for bail of the petitioner at the present moment, we must indicate to the learned Magistrate that it would be meet and proper for him to send the matter immediately to the Special Court and the matter should proceed in accordance with law before the Special Court hereafter.
11. The application for bail stands rejected. Let the records be sent back to the Court below through a special messenger.
G.R.Bhattacharrjee, J.
12. I agree.