1. This Criminal Revision Application has been filed by the Intelligence Officer, Narcotics Control Bureau, Bombay challenging the order below Exh. 1 in Criminal Bail Application No. 1041 of 1997 wherein the accused-respondent No. 1 has been ordered to be released on bail on furnishing P.R. Bond for Rs. 30,000/- with one solvent surety in the like amount. The accused has also been directed to attend Vasai Police Station on every Sunday between 8.00 a.m. and 5.00 p.m. and not to leave the limits of the said Police Station till further orders.

2. The facts as narrated in the impugned order may be noticed.

In accordance with the information received by the Intelligence Officer of Narcotics Bureau, Mumbai, house of the accused was searched. This search was made in the presence of the panchas. As a result of the search, 60 grams of opium and 6 grams of methaqualone powder were recovered. The search was made in the presence of the panchas and the contraband was seized from the house of the accused under panchanama. An amount of Rs. 15,000/- in cash was recovered. Some equipments for preparation of methaqualone powder were also seized from the said house. Statement of the accused was recorded under section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as "the N.D.P.S. Act ". The samples from the said opium and methaqualone powder were taken and sealed. They were sent to the Chemical Analyser for an analysis. After completion of the investigation the complaint was lodged against the accused by Shri M.D. Kale, Intelligence Officer, Narcotics Bureau in the Court of Special Judge, N.D.P.S., Thane, Xerox copies of the necessary documents were submitted along with the complaint. The accused was arrested on 14-1-1996 and he was in judicial custody at the time of making the application for bail.

3. It was submitted before the learned Special Judge that the accused had been falsely implicated. The investigation into the offence was almost over and the charge-sheet had been filed before the Court. It was also submitted that there is non-compliance of the mandatory provisions of sections 42 to 50 of the N.D.P.S. Act. According to the Counsel for the accused there was non-compliance of the mandatory provisions of section 42(1) of the N.D.P.S. Act which provided that the Officer who received the information about the offence reduce the same into writing. After examining the material on record, the learned Special Judge came to the conclusion that the Intelligence Officer of the Narcotics Bureau who had received the information from the informant had reduced the same into writing and, prima facie, there appears compliance of section 42(1) of the N.D.P.S. Act. According to this section 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 forthwith send a copy thereof to his immediate official superior. To satisfy the Court that this provision had been complied with, the attention of the Court was invited towards the endorsement below the gist of information. This endorsement shows that the copy has been sent to A.D., N.C.B., Bombay on 12-1-96 as required under section 42(2) of the N.D.P.S. Act. Thus it was submitted that it is quite sufficient to show that the provisions of section 42(2) of the N.D.P.S. Act are complied with. This submission was rejected by the learned Special Judge with the observations that there is no record to show that the said copy was received by the said Officer and it was expected from the State to show that the said copy was sent along with the letter addressed to the Superior Officer. A copy of the said letter ought to have been produced in the Court. No such letter was filed in Court. In view of the above, the learned Special Judge has observed that the provisions of section 42(2) of the N.D.P.S. Act have not been strictly complied with.

4. Relying on the case of State of Punjab v. Balbir Singh 1994(1) Crimes page 753 it was submitted on behalf of the accused that non-compliance of the provisions of sections 41 , 42 , 50 , 51 , 52 and 57 will vitiate the conviction of the accused. It was further submitted that the strict compliance of the provisions should be looked into even at the stage of bail. For this proposition Counsel for the accused had relied upon the case of Lawrance D'Souza v. State of Maharashtra , 1992 Cr.L.J. 399. These submissions of the Counsel for the accused have been accepted and it has been held that there was no strict compliance of the provisions of section 42(2) of the Act. Counsel for the accused had also submitted that there is non-compliance of section 50 of the Act. This section, however, has been held to be inapplicable to the facts of the present case. On merits it was submitted on behalf of the accused that he has been in custody since 14-1-96 and his family is also suffering. Further the quantity recovered from the accused was not huge as it was only 60 grams of opium and 6 grams of methaqualone powder. It was also pointed out to the learned Special Judge that the detention of the accused under section 3(1) of the Prevention of Illicit Traffic in the Narcotic Drugs & Psychotropic Substances Act, 1988 was quashed by the Delhi High Court in Criminal Writ No. 519/96. The said detention order related to the same offence. The detention order having been set aside by the Delhi High Court, it was submitted that the accused deserves to be released on bail. The learned Special Judge, however, was not impressed with the said argument as the detention order had been set aside on different grounds. But at the same time the learned Special Judge has recorded a finding that there is no other antecedents of the accused as regards the offences under the N.D.P.S. Act , It is also recorded that no ground is shown whether there is any likelihood of the accused absconding or tampering with the prosecution evidence in case he is released on bail.

5. The Counsel also submitted that the confessional statement of the accused under section 67 of the N.D.P.S. Act is not admissible in evidence. This statement was retracted by the accused on 9th April, 1996 when he was produced in Court. It was stated that the said statement was not voluntary and it was obtained under threats, pressure and duress. Learned Counsel appearing for the accused relied on the case reported in 1990 Cr.L.J. 903 Prajesh S. Waghani v. The Intelligence Officer . In that case this Court had granted bail. It was held in this case that the confessional statements made by the accused therein were secured by physical assault and did not inspire confidence in the prosecution version. Relying on the aforesaid case and after taking into consideration all the facts and circumstances such as non-compliance of the mandatory provisions of section 42(2) of the N.D.P.S. Act, quantity of contraband seized from the house of the accused, his long detention in the jail and his complaint about statement under section 67 being under duress and threat, the learned Special Judge ordered that the accused be released on bail.

6. Mr. Agrawal, learned Counsel appearing for the petitioner, has submitted that the learned Special Judge has exceeded the jurisdiction vested in the Court for grant of bail under the Act. He submits that there was sufficient compliance of section 42(2) of the N.D.P.S. Act. In support of his submissions he has relied upon Harish M. Patel v. Inspector of Customs, 1996(3) All M.R. 608, paragraph 3, Ashok Kumar & Ors. v. Chairman, B.S. Recruitment Board , , and Booby Art Interlant & others v. Ompal Singh Hoon & others, . It is also submitted that at this stage the Court ought not to hold a mini trial on merits. In support of this proposition Mr. Agrawal relies on Garban AH v. Ad-Interim Unit),1996(2) M.L.J. 839 paragraph 8. It is further submitted that merely because statement has been retracted does not mean that a presumption arises that the same is involuntary. It is submitted that the statement itself is sufficient to hold that the accused is guilty. In support of these submissions. Counsel has relied upon The Director of Enforcement v. Shri Rohit B. Jhaveri, 1996( 1) All M.R. 89 and C. Sampath Kumar v. The Enforcement Officer, Enforcement Directorate, Madras , 1997(8) Supreme Today 268. Counsel has also relied on Yinusa Olerualoje v. R.N. Kakkar, 1997(IV) L.J. 853 at page 862, para 32, onwards. Counsel further submits that under section 35 of the Act, the burden of proof is on the accused. Bail can only be granted if the learned Judge comes to the conclusion that there are grounds for acquittal of the accused. The burden of proof on the accused under section 35(2) of the N.D.P.S. Act is beyond reasonable time.

7. Mr. Chitnis, learned Counsel appearing for the accused, however, submitted that the criminal revision application is liable to be dismissed as not maintainable. He also submits that bail once granted can only be cancelled in exceptional circumstances. According to the learned Counsel the remedy for cancellation of bail is not by way of revision. The application has to be made under section 439(2) of the Cr. P.C. It is further submitted that all the judgements relied upon by Mr. Agrawal are not applicable. In support of his submissions Mr. Chitnis has relied upon judgement of the Supreme Court in the case of Amar Nath and others v. State of Haryana and another , . In this case it is categorically held that a harmonious construction of sections 397 and 482, Cr. P.C., 1973 would lead to the irresistible conclusion that where a particular order is expressly barred under section 397(2) and cannot be subject to revision by the High Court then, to such a case, the provisions of section 482 dealing with the inherent powers of the High Court would not apply. It is further held that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where, however, there is an express provision barring a particular remedy the Court cannot resort to the exercise of inherent powers. Similar is the view expressed by this Court in the case of Mohan @ Mannu R. Basantani v. State of Maharashtra , wherein it is held as follows:

Mr. Chitnis also relied the judgement of the Supreme Court in the case of Usmanbhai D. Memon and others v. State of Gujarat , wherein it is categorically held that an order granting bail or refusing bail is an interlocutory order. That being so it is submitted that no revision would be maintainable.

8. Mr. Agrawal on the other hand has relied on a number of judgments to submit that inspite of the bar under section 397(2) this Court can still interfere under section 482 of the Cr. P.C. He has relied on Talab Haji Hussain v. Madhukar Purshottam Mondkar , and Court on its own Motion v. Vishnu Pandit , 1993 Cri. L.J. 2025 Delhi High Court, wherein it is held that the powers of the High Court under section 482 of the Cr. P.C. can also be relatable to the powers of the Court under " Article 227 of the Constitution of India having the power of superintendence over the courts. It is held that no law made by Parliament or State Legislature can whittle down the powers conferred by Article 227 on the High Court.

9. In my view the aforesaid submissions made by Mr. Chitnis, learned Senior Counsel for the respondent do not have any substance. A bare perusal of the cause title of the application shows that it is styled as "in the matter of order dated 16-9-97 granting bail dated 16-9-97, passed by learned Special Judge, Thane, allowing Cri. Bail Application No. 1041/97 of respondent No. 1, original accused; and in the matter of sections 439(2), 400 and 482 of Cr. P.C. And in the matter of Article 227 of Constitution of India." Thereafter the prayers made are as follows:

In view of the above it can hardly be said that the present application is not made under section 439(2) of the Criminal Procedure Code. Once the application has been filed under section 439(2) of the Cr. P.C., mere mention of section 482 of Cr. P.C. and Article 227 of the Constitution of India would not change the nature of the application. The question raised by Mr. Chitnis may perhaps have been relevant had the application been made as a Criminal Writ Petition under section 482 of the Cr. P.C. or as a petition under Article 227 of the Constitution of India alone. In my view the cases cited by Mr. Chitnis are not applicable in the facts and circumstances of this case. Even if it is accepted that the application has to be made under section 439(2) Cr. P.C., the provision has been complied with. As noticed above application has been made under section 439(2) read with section 482 Cr. P.C. and Article 227 of the Constitution. Nevertheless the submissions made by Mr. Chitnis can be examined, as they have been specifically raised. It can be readily seen that in Amar Nath 's case (supra) the Supreme Court examined the scope of section 482 Cr. P.C. in the context of the bar on revision against interlocutory orders as provided in section 397(2) Cr. P.C. The Supreme Court did not examine the power of the Court under Article 227 of the Constitution of India. In Usamanbhai's case (supra) the Supreme Court observed in para 16:

Again in scope of the power of the High Court under Article 227 of the Constitution was neither raised before the Supreme Court, nor was it dealt with. The Judgement of this Court in the case of Mohan @ Mannu Radhamal Basantani (supra), dealt only with the revisional powers of the Sessions Court. In this case the settled law that no revision is competent against an interlocutory order is reiterated. The power of the High Court and scope of Article 227 has not been dilated upon by the Court. The Delhi High Court on its own motion cancelled the bail granted to the accused in the case of Vishnu Pandit (supra). If the argument of Mr. Chitnis are accepted, the High Court would be powerless to cancel bail, unless the case falls within the scope of section 439(2) Cr. P.C. This to my mind would be rewriting Article 227 of the Constitution of India, which preserves the power of the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The reasons why the Delhi High Court took suo moto notice are set out in the judgement of the learned Single Judge, D.P. Wadhwa, J., which are as follows:

Paragraphs 7, 8 and 9 read as follows :

8. It is contended that Court should be liberal in granting bail and the accused has a right to bail under Article 21 of the Constitution which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The question of grant of bail to the accused depends upon the facts and circumstances of each case and the factors which the Court would take into consideration in a given case cannot be put into straight jacket, but some of these have been spelled out by the Apex Court which I will personally refer to. If Article 21 gives right of liberty to the accused, it at the same time protects a woman so that she can live with dignity and honour."

9. An argument was raised that an order granting or refusing bail is an interlocutory order and as such no revision lies of such an order. In this connection reference has been made to a decision of the Supreme Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat , 1988(1) J.T. (S.C.) 539 : 1988 Cri.L.J. 938 and to the provisions of sub-section (2) of section 397 of the Code....."

Repelling the argument raised in para 9, Wadhwa, J., observed in paras 12 and 14 as follows:

In State of Maharashtra v. Tukaram Shiv Patil ), 1977 Cri.L.J. 394 a Division Bench of this Court has held that "The High Court and even Sessions Court has powers to cancel the bail granted earlier pending the trial or investigation under section 439(2). The High Court can further cancel it in the exercise of its inherent jurisdiction under section 482 Cr.P.C. apart from the powers under Article 227 of the Constitution". These observations were made in view of the law laid down by the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar and another . In paras 1 and 12 of this judgment, the Supreme Court has observed as under :

To the same effect are the observations of the Punjab and Haryana High Court in the case of State of Punjab v. Balraj Singh and another , 1986 Cri.L.J. 1255 which read as under :

Ambit of the power of the High Court under Article 227 of the Constitution has been reiterated by the Supreme Court in the case of M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others , 1998(5) Bom.C.R. 432 : 1998 Cri.L.J. 1. The Supreme Court has observed in paras 22 and 26 as under :

26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226 , the Court can certainly treat the petition one under Article 227 or section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief section 482 of the Code or Article 227 may have to be resorted to for correcting, some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."

10. Now, the merits of this case. Section 37(1)(b) of the N.D.P.S. Act clearly provides that 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 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. The aforesaid section clearly provides that when the Public Prosecutor opposes the application for bail then the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence. These provisions have an overriding effect on the provisions of the Code of Criminal Procedure , 1973. Section 37 starts with a non obstante clause in the terms that "Notwithstanding anything contained in the Code of Criminal Procedure , 1973 (2 of 1974) ...." This section imposes stringent restriction on the grant of bail and the conditions mentioned therein must be satisfied. Bail is not the normal rule for such offences. In order to satisfy the Court that there are reasonable grounds for believing that the accused is not guilty of an offence under the N.D.P.S. Act it is the accused who would have to furnish the material for the said satisfaction. In the present case the learned Special Judge has held that section 41 of the N.D.P.S. Act has been complied with. Bail has, however, been granted on the ground that section 42(2) of the N.D.P.S. Act has not been complied with. The learned Special Judge has held that "There is no strict compliance of the said provisions which can be looked into at this stage." This in my view is not correct. The gist of information as required under the Act was reduced to writing on 12-1-96. It has been signed by the Officers as well as the informer. Below the said gist of information it is categorically mentioned that a copy has been sent to A.D. N.C.B. BZU, B' bay on 12-1-96 as required under section 42(2) of the N.D.P.S. Act, 1985. This again is signed by the Officer. Although the non-compliance of the provisions of the Act can be looked into at the stage of bail the Court cannot be oblivious to other incriminating evidence. In the present case the accused has made a confessional statement in which he has very eloquently set out as to how he came into possession of the drugs as also the equipment for manufacture of methaqualone powder. Certain quantities of methaqualone powder which had been manufactured was also recovered. Merely because the statement has been subsequently retracted does not mean that it can be discarded at the stage of bail itself. A retracted statement does not lose its evidentiary value. In any event at the stage of consideration of the application for bail, the Court would not be justified in holding a mini trial to decide as to whether or not the retracted statement was voluntary.

11. There is yet another reason as to why the impugned order cannot be sustained. For his conclusions the learned Special Judge has relied upon two authorities, which were cited on behalf of the accused. State of Punjab v. Balbir Singh , 1994(1) Crimes page 753 has been relied upon to hold that non-compliance with sections 41 , 42 , 50 , 51 , 52 and 57 will vitiate the conviction of the accused. The learned Special Judge did not however consider that in this very case. The Supreme Court observes:

The learned Special Judge then relies on 1992 Cri.L.J. 399 Lawrence D'Souza v. State of Maharashtra, to hold that the question of non-compliance of the provisions can be looked into even at the stage of bail. In my view the reliance on the aforesaid cases is misplaced by the learned Special Judge. No doubt, non-compliance of the mandatory provisions would entitle the accused to acquittal. The learned Special Judge holds that there is no strict compliance of section 42(2) of the Act "as copy of the gist of the information sent to the superior Officer will not suffice unless it is shown by the letter along with the copy of the same, which was sent to the immediate superior officer or the acknowledgment of the Officer regarding the same." The Supreme Court in Balbir Singh 's case holds that if there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not will be a question of fact.

In the facts of this case, at this stage it cannot be said that section 42(2) has not been complied. Even the learned Special Judge comes to the conclusion that section 42(1) has been complied with section 42(2) does not prescribe a mode by which the gist of the information is to be forwarded to the immediate superior. The section merely requires the officer recording the information "shall forthwith send a copy thereof to his immediate official superior". In this case it is categorically stated at the foot of the gist of information. "A copy of gist of information was given to A.D. on 12-1-96 as required under section 42(2) of the N.D.P.S. Act, 1985". The aforesaid endorsement has been signed by the A.D. on 12-1-96. In view of the above the learned Sessions Judge was not at all justified in coming to the conclusion that there has been non-compliance with the provisions of the Act. The Supreme Court in Balbir Singh 's case (supra) has held that it is a question of fact as to whether the provision has been complied with. That can only be determined on the basis of the evidence, which will be led by the prosecution to show that the provisions of section 42(2) have been complied with. At this stage the endorsement of the officer recording the information and the signatures of the superior officer (A.D.) have to be prima facie accepted. On this ground it would not be possible to bold that the accused was entitled to bail.

12. The second factor which weighed with the learned Special Judge for grant of bail, is that the accused has retracted his statement made under section 67 of the Act. Thus it is observed that the statement is of no evidentiary value. The learned Sessions Judge relies on a judgment of this Court in the case of Prajesh S. Waghani v. The Intelligence Officer , 1990 Cri.L. J. 903 and quotes the following passage from the judgment.

In my view the facts and circumstances of the present case were not para materia to the facts quoted in the passage above. In Waghani 's case (supra) there is no recovery; there was no evidence of physical possession of the narcotics seized; only evidence was the confessional statement; the accused were sought to be connected with drugs through circumstantial evidence only; there was nothing on the record to connect the accused with the specific drug seized, there was a possibility of the confessional statement having been secured by physical assault. Thus it was held that the confessional statement did not inspire confidence. In the present case the search has been conducted of the residential premises of the accused. Narcotic drugs have been recovered. Manufacturing implements with traces of the final product have been recovered. The accused made a statement accepting the recovery. He gives an explanation about the presence of the drugs and the manufacturing implements in his premises. He states that the machinery has been brought from Pravin Mehta, who owes the accused 38,000/-. The machine is used for production of methaqualone powder. That Pravin Mehta is said to be in jail, having been arrested by the Narcotics Cell of the Customs. He has bought his present flat with cash. He was involved in a murder case, which is pending. He was detained under TADA and later released. He refuses to disclose the source of money paid to Mehta or for the flat at Vasai. Keeping the aforesaid facts in view I do not see the remotest resemblance between the present case and Waghani 's case. In my view, the learned Special Judge fell into serious factual and legal error in giving to the accused in the present case, the benefit of the observations in Waghani 's case. The law with regard to retracted statements has been considered by a Single Judge of Gujarat High Court in the case of Haji Abdulla Haji Ibrahim Mandhra and another v. The Supdt. of Customs (P.I .) Bhuj and another, 1992 Cri.L.J. 2800 wherein Shethna, J., observed as under :

I respectfully agree with the aforesaid observations of Sethna, J.

13. In the case of C. Sampath Kumar v. The Enforcement Officer , 1997(8) Supreme Today 268, the Supreme Court has held that there is no presumptio that a statement made upon summons under section 40 of F.E.R.A. 1973 is always involuntary. Such a statement can be used in evidence. A Division Bench of this Court in the case of The Director of Enforcement v. Shri Rohit B. Jhaveri, 1996(1) All.M.R. 89 has held that "It is clear that it is always open to place reliance upon the statement recorded under section 40 of the Act and the contents of the statement can be relied upon even in absence of any corroboration". These observations were made when the Appellate Board (under F.E.R.A.) had refused to rely on the retracted statement of the person to whom show cause notice had been issued, by the Directorate of Enforcement, as to why adjudication proceedings be not held against the respondents therein. The plea taken was that the statement recorded on January 21, 1982 was not voluntary. This plea was taken in reply sent by the Advocate of the respondent on February 15, 1983. In adjudication proceedings the respondents (husband and wife) were held guilty of contravention of F.E.R.A. and penalty of Rs. 1,00,500/ - was imposed on the husband and Rs. 500/- on his wife. On appeal by the husband, the Appellate Board had not relied upon the statement. This finding of the Appellate Board was not accepted by the Division Bench, as noticed above. It is also now settled by a string of authorities that the evidence collected during an illegal search is admissible in evidence. In support of this proposition Mr. Agrawal has cited Division Bench judgment of this Court in the case of Yinusa Olerualoje and another v. R.N. Kakkar and another, 1997(IV) L.J. 853. This Court after considering the law as declared by the Supreme Court held:

These observations, have been made by the Division Bench after considering the ratio of the law laid down by the Supreme Court in ( i) State of Punjab v. Balbir Singh , 1994(1) Crimes 753(2), Shirjeet Singh v. Union of India, 1997 A.I.R. S.C.W. 2507(3) and State of Himachal Pradesh v. Priti Chand, AIR 1976 SC 976. Similar view has been reiterated by the Supreme Court in the case of State of Punjab v. Jasbir Singh , 1996 S.C.CT (Cri.) 1. It is observed as follows :

The same sentiments have again been echoed by another learned Single Judge of this Court in the case of Bhaivaji Dnavnit Nimbalkar v. State of Maharashtra , 1997(V) L.J. 233. In para 7 of the judgement, Vishnu Sahai, J., observes :--

In view of the settled law, I am constrained to observe that the learned Special Judge has acted in excess of jurisdiction whilst granting bail to the respondent. The evidence collected by the prosecution viz, the recovery of the contraband and the apparatus/implements for manufacture of methaqualone powder eg. heating mantles, motor with stirer device, motor with reduction gear, electric dryer, weighing scale, stoppers, cylindrical bowls, glass tube connections etc., cash in the sum of Rs. 15,000/- could not be discarded at the stage when an application for bail is being considered.

14. I am also of the considered opinion that the learned Special Judge has erred in granting bail to the applicant without recording any cogent reasons in terms of section 37(1)(b) of the N.D.P.S. Act. Section 35 of the Act raises a presumption of mens rea against the accused. This section provides that it shall be a defence for the accused to prove the fact that he had no mental state with respect to the act charged as an offence in that prosecution. Sub-section (2) of section 35 of the N.D.P.S. Act provides that such defence would have to be proved beyond a reasonable doubt and not merely by a preponderance of probability. This is a departure from the normal rule, consciously made by the Legislature. Thus while coming to the conclusion under section 37(1)(b) that there are reasonable grounds for believing that the accused is not guilty of the offences charged, provisions of section 35 have to be kept in view. In similar circumstances this Court considered the impact of section 37 of the Act, on the power of the Court to grant bail, in the case of Harish M. Patel v. Inspector of Customs and others, 1996(3} All.M.R. 605. Chandra Shekhara Das, J., has observed as follows in para 4.

Aforesaid section declares that all the offences punishable under the said Act as cognizable. But from the restrictions on granting a bail in favour of the accused, who is charged under the said Act, it appears that the Policy of Government has clearly spelt out in the said section that granting of bail is only an extreme and rare circumstances have been provided in the Act, viz. that an application for bail to be considered only after hearing the Public Prosecutor which means without hearing the Public Prosecutor no bail application can be considered. Another strict and stringent condition which are very important is that if the Public Prosecutor opposed the bail application the Court was left with little discretion in granting the bail and the discretion could be exercised by the Court only where the Court is satisfied that such offence is not likely to be committed again. In other words, the Court must be satisfied that there is no basis for the allegations. If at all, the allegations are proved then it should not entail finding guilty of the accused. That means the Court must be satisfied that even if the allegations are established there exists every likelihood that the accused be acquitted. In such strong (evidential) circumstances alone a bail could be granted by the Court below. In these circumstances the contention of the Counsel for the petitioner that the petitioner has not been furnished any material substance connecting the accused with an offence cannot be considered at this stage because the entire prosecution case is built on the conspiracy between the accused. Needless to say that the charge of allegation of conspirary cannot be rejected by the Court when the prosecution is being given an opportunity to establish this charge. In view of the strict and stringent policy laid down under section 37 Part II I don't find any illegality in rejecting the application for bail made by the petitioner,"

Considering the facts and circumstances of this case it would not be possible to hold that the applicant had proved any such facts beyond reasonable doubt leading to the conclusion that there are reasonable grounds that he is not guilty of the offences. In my view, the learned Special Judge has exceeded the jurisdiction vested in the Court in passing the impugned order. No worthwhile reason is given to hold that provisions of section 42(2) of the Act have not been complied with.

15. In view of the above the application is allowed. The order releasing the accused on bail in Cr. Bail Application No. 1041 of 1997 in N.D.P.S. Special Case No. 190/96, passed by the learned Special Judge, Thane dated 16-9-97 is hereby quashed and set aside. The respondent No. 1, Mohd. Afzal Mohd. Yarkhan, be taken into custody by issuing non-bailable warrant.

16. Application allowed.