Asstt. Director of Revenue Intelligence, Mad. vs Abdul Rasheed

This petition, u/s 439(1) of the Code of Criminal Procedure, has been filed by the Assistant Director, Directorate of Revenue Intelligence, 14,

Gopalakrishna (Iyer) Road, T. Nagar, Madras-17, the complainant, praying for the cancellation of the bail granted by the learned Principal

Sessions Judge, Madras to the respondent by name Abdul Rasheed in Criminal Miscellaneous Petition No. 3732 of 1993 dated 23-7-1993.

But for the interesting legal question being raised in this case, I do not propose to interfere with the order of bail granted by the learned Principal

Sessions Judge noted supra.

The facts which led to the prosecution against the respondent herein are stated in brief as follows :

On the basis of an intelligence about the commission of an offence under the N.D.P.S. Act that the respondent herein was going to receive narcotic

drug from one Mahesh who was arriving by Grand Trunk Express on 8-7-1993, the petitioner herein, who is the complainant and his staff,

maintained surveillance at the lodge in Madras where the respondent herein was staying, as well as in the Central Railway Station and thereby,

watched the movements very closely. On the arrival of the said train, the respondent herein received two persons from the said train and all the

three were returning jointly. When they are intercepted and enquired, their names and places were revealed. On further questioning, they had

replied, that they were not in possession of any narcotic drugs, which was followed by the search of their luggage. While doing so, Mahesh Rathod

admitted that he was in possession of one kilogram of Heroin in his suit case. Then on the search of the luggage of the said Mahesh, the petitioner

recovered two cloth bags, which contained the contraband of Heroin. But however the luggage of the other did not contain any contraband or any

incriminating document. But significantly, on the personal search of the respondent herein, the petitioner had recovered certain incriminating

documents. Then, following the procedure prescribed by the rules, the contents of the two cloth bags packed in polythene bags were seized under

the cover of mahazar, in the presence of the respondent and the other two accused and in the presence of two independent witnesses. All of them

were then brought to the office of the D.R.I. and detained for examination, where, the said cloth bags and the polythene bags were opened and the

brown coloured powder contained in the said bags were tested with Narcotics Test Kit and the said powder answered positive for Heroin. Then

after weighing the same, samples were taken as contemplated by law for chemical examination under a mahazar in the presence of same witnesses

and in front of the said accused persons.

In the preliminary interrogation made by the petitioner Mahesh Rathod, the first accused, had stated, that he had brought the Heroin from

Mandsaur for handing over to the respondent herein and that he had brought the other accused for the purpose of safe transport as an escort. The

respondent herein also had stated that he was to receive the said contraband from Mahesh and hand over to Rahamathullah, who had come from

Dindigul and was staying in Tanikachalam Leather Company at Lalakutty Street, Periamet, Madras. It is also the case of the petitioner, that the

respondent had stated, that he had come to receive the heroin on the instructions of one Sikkander (A5), for the purpose of handing over the same

to Rahamathullah (A4). To this extent Rahamathullah, had also admitted the same. Following the above, messages over telephone, were

transmitted to the Officials at Trichy, to cause search of the residence of the said Sikkander of Dindigul and serve summons upon him to make his

appearance for enquiry. But however, on search, no contraband or incriminating documents were recovered or seized. The said Sikkander

appeared before the petitioner on 9-7-1993 and admitted his involvement. Likewise, room No. 101 of the Golden Cafe, Poonamallee High Road,

Periamet, Madras, was also searched by the Officers of the petitioner under the provisions of the N.D.P.S. Act but however, no contraband or

incriminating documents were recovered therefrom.

As contemplated u/s 67 of the N.D.P.S. Act, 1985, Mahesh Rathod, Sanjay Kumavath, respondent herein, Rahamathullah and Sikkander were

all examined and their statements were recorded and wherein, all of them have admitted their involvement in the offence. Mahesh Rathod, Sanjay

Kamavath, the respondent herein and Rahamathullah were arrested on 8-7-1993 at 23.00 hours and Sikkander was arrested at 13.00 hours on 9-

7-1993 under the provisions of the N.D.P.S. Act. According to the petitioner, the value of the seized Heroin is about Rs. 2,00,000/-.

Appending the xerox copies of all the recorded statements and the report provided u/s 57 filed by the seizing officer for the seizure of 1000

grams of Heroin, with the remand report detailing all the abovesaid facts, the respondent herein along with the other accused was produced before

the Additional Chief Metropolitan Magistrate, Economic Offences II, Madras, on 9-7-1993 praying for remand in judicial custody.

To appreciate the case in hand in the proper perspective, I have extracted the very reasoning given by the learned remanding Magistrate on 9-

7-1993, which are as follows :

9-7-1993 : All the 5 accused produced today before me at my residence at 8.15 p.m. No complaint against the D.R.I. Officials. Original records

perused. There is prima facie case for remand. Hence all the five accused are remanded to judicial custody for 15 days till 23-7- 1993 to be

produced before the Principal Sessions Judge, Madras on 23- 7-1993 for further proceedings.

Mahesh Deepchand Rathod, Sanjay Kumavath, Abdul Rasheed, Rahamathullah and P. Sikkander were the five persons who have put their

signatures as accused number 1 to 5 in the said remand report after the order passed by the learned Magistrate.

It appears, that a petition praying for bail u/s 439 of the Code of Criminal Procedure in Crl. M.P. No. 3732 of 1993, was filed on behalf of the

respondent herein, before the learned Principal Sessions Judge, Madras, in which, it was contended that though the respondent was alleged to

have committed offences punishable under Sections 8(c) read with 21 of the N.D.P.S. Act, since no narcotic substance had been seized from his

person and the seizure mahazar claimed by the petitioner in this case had not been produced before the court below and that the sample taken by

the petitioner at the D.R.I. Office had not been stamped and thus the mahazar alleged had not been prepared u/s 52A(2)(3)(4) of the N.D.P.S.

Act and that he was entitled to be enlarged on bail. The said relief, was opposed on behalf of the petitioner, on the ground, that in so far as the

alleged offences were concerned, the petitioner and other accused had admitted their different overt acts in their statements recorded by the

petitioner and that inasmuch as the said statements had not been obtained by threat or coercion and further, that the respondent herein had

indulged in conspiracy, as provided under the N.D.P.S. Act, in the context of Section 37(b) of the said Act, it was prayed that the application filed

by the respondent is to be rejected.

While considering the rival contentions, learned Principal Sessions Judge, has given findings that when the contraband of one kilogram of Heroin

was recovered from the first accused, the respondent herein along with the other accused was present and that the said contraband was found

wrapped in two polythene bags concealed in the suit-case belonging to the first accused and that the said contraband was purchased from one

Mahammed Yasin and that it was arranged to be handed over to one Rahamathullah by the respondent herein and that above all, as per Section

67 of the N.D.P.S. Act the respondent herein had given a voluntary confession statement and on the basis of which Rahamathullah and Sikkander

were also arrested. According to the learned Principal Sessions Judge, none of the accused including the respondent herein had complained to the

remanding Magistrate that their statements were obtained either by threat or coercion nor did they retract their confession statement and the

confession statement voluntarily given by the respondent herein, amounts to documentary evidence and is totally admissible in evidence, as

provided u/s 67 of the Act. He would further opine, that Section 66 provides the legal presumption regarding the involvement of the respondent in

the offence alleged against him. According to the learned Principal Sessions Judge, it was not at all possible for the Court to believe that the

petitioner had not involved in the alleged offences but on the other hand, he was found closely associated with the other accused and that the whole

thing has to be concluded only after the trial and that from the documents appended and relied on, the learned Judge, during the observation has

categorically stated, that the respondent had contacted Mohammed Yasin over telephone, which he came to know from the records. But however,

for the simple reason that the seizure mahazar for the recovery of contraband, though the other co-accused had been released on bail, has not been

filed in the Court, the learned Principal Sessions Judge, has granted the bail for the petitioner. Aggrieved, petitioner, has come forward with this

petition for the cancellation of the bail granted to the respondent.

Mr. P. Rajamanickam, learned Central Government Public Prosecutor, while projecting his case for the cancellation of the bail granted by the

Principal Sessions Judge in the impugned order, questioned the very propriety of the same, on the ground, that in view of the detailed remand

report produced along with the accused and more particularly with the affixures made therein, pertaining to the xerox copies of the statements

made by all the accused, more particularly referred to in paragraphs 5 and 6 of the remand report and the report contemplated u/s 57 of the

N.D.P.S. Act was more than suffice to the learned remanding Magistrate to accept the production of all the accused and order the remand

accordingly; and that the officials of the Directorate of Revenue Intelligence are deemed to be not the Police Officers, as provided under the Code

of Criminal Procedure and that in so far as they are a separate agency empowered under the special enactment to investigate the case by collecting

materials and evidence thereon and file a complaint before the court of law on completion and that cannot be equated with the investigation done

by the Police under the Code of Criminal Procedure; and that, the non-production of the seizure mahazar, while the Principal Sessions Judge

observing that every involvement of the petitioner with his co- accused pertains to the various offences under the N.D.P.S. Act is not a material

thing, which shows, that the petitioner prima facie is involved in the offences under the N.D.P.S. Act and that therefore, the rigour of Section 37 of

the N.D.P.S. Act clearly applies to the present case and that therefore, the learned Principal Sessions Judge, has totally overlooked all the above

said aspects while passing the order granting bail and that, as such, it has to be cancelled.

Mr. Punniyakotti, learned counsel appearing for the respondent, controverted every one of the arguments advanced on behalf of the petitioner

by contending that though the Officials of Directorate of Revenue Intelligence are not deemed to be regular Police also are to investigate the cases

under N.D.P.S. Act, but however, while seizing the contraband of Heroin of one kilogram, since the mandatory provisions of Sections 50, 51,

52A, 53 of the N.D.P.S. Act have not been complied with by the Petitioner coupled with the fact of non- production of the seizure mahazar to the

Court, the rigour of Section 37 of the N.D.P.S. Act, cannot be taken to mean, that the learned Principal Sessions Judge, went wrong in granting

bail to the respondent and that therefore, in view of the non-compliance of the above mandatory provisions of law, the order granting bail to the

respondent herein, is perfectly correct and on par with the law made in furtherance of the interests of justice and is not liable to the cancelled

forthwith.

In the light of the above rival contentions, the only point, that rises for consideration is, whether the impugned order passed by the learned

Principal Sessions Judge, Madras in Crl. M.P. No. 3732 of 1993 dated 23-7-1993 is liable to be set aside ?

Point : A plain reading of the impugned order passed by the learned Sessions Judge, shows that simply because the seizure mahazar has not

since been sent to the Court, there existed a compelling necessity to enlarge the respondent herein on bail and accordingly granted the bail for him.

It is seen from the typed-set of the remand report, in paragraph 1, that the contraband of Heroin was seized under mahazar in the presence of the

accused persons Mahesh Rathod, Sanjay Kumavath, Abdul Rashid as well as independent witnesses and the samples were taken in accordance

with the mandatory provisions contemplated under the Narcotic Drugs and Psychotropic Substances Act, followed by the recording of the

statements from the accused and so on. The said report has also been sent to. In short, the remand report sent by the petitioner while seeking the

remand of the accused speaks everything in detail. The list of documents referred to and annexed along with the remand report six in number

appended with xerox copies clearly reveals and substantiates the very contents of the remand report, which in all, clearly demonstrate that the

mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act has been duly and totally complied with by the petitioner. It has to

be noted that the recovery of the contraband by the petitioner was made on 8-7-1993 as aforesaid and that the impugned order was passed by

the learned Sessions Judge on 23-7-1993. Admittedly, the petitioner herein while seeking the remand of the accused by sending the remand report

along with the xerox copies of the statements of confession recorded from the accused, special report and so on, has not sent either the original or

the copy of the seizure mahazar, as specially referred, as the only reason for granting bail by the learned Sessions Judge. To substantiate the

contention, a copy of the seizure mahazar dated 8-7- 1993 was produced in typed-set for the perusal of this Court. Further, it is the observation of

the learned Sessions Judge that none of the accused retracted their voluntary confession statement. As per Sections 66 and 67 of the Narcotic

Drugs and Psychotropic Substances Act, the said xerox copies of the confession statements of the accused can be looked into, as observed by the

learned Sessions Judge. If that is so, it has to be seen, whether the non-production of the seizure mahazar in original or a copy of the same would

affect the case of the prosecution ? If so, to what extent ?

Section 100 of the Code of Criminal Procedure deals with the persons in charge of closed place to allow search. Various sub- sections

numbering 1 to 8 of Section 100 of the Code deal with the mode of searches to be conducted by the officers concerned but only under search

warrants. Similarly sub-section (4) of Section 165 of the Code makes it clear that the provisions of this Code as to search- warrants and the

general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under this Section. Sub-section (5)

provides that copies of any record made under sub-section (1) of sub-section (3) of Section 165 of the Code shall forthwith be sent to the nearest

Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free

of cost, with a copy of the same by the Magistrate. But however, it has to be noted that the mode in which the searches are to be made or

conducted pursuant to Section 100 or Section 165 of the Code are not applicable to the search or seizure of the contraband under the cover of

mahazar in this case.

Chapter V of the Narcotic Drugs and Psychotropic Substances Act, 1985 as amended (herein after called as N.D.P.S. Act) lays down the

procedure for entry, search, seizure and arrest with or without warrant or authorisation by giving powers to the Magistrate to issue warrants as well

as powers to the Officers authorised to search etc. without warrants. But it is worthwhile to note that certain adequate safeguards have also been

provided in the said Chapter against the abuse of power or the mis-use of authority, for instance, Section 58 of NDPS Act provides for

punishment for vexatious entry, search, seizure or arrest as well as for wilfully and maliciously giving false information and so causing an arrest or a

search being made under the Act. But on the other hand, Section 50 provides that if a person is about to be searched under the provisions of

Sections 41, 42 and 43, the person duly authorised to search, shall take such person without unnecessary delay to the nearest Gazetted Officer of

any of the departments mentioned in Section 42 or the Magistrate and if the Gazetted Officer or the Magistrate sees no reasonable ground for

search he shall forthwith discharge the person but otherwise shall direct that search be made. It has also been provided that no female shall be

searched by anyone excepting a female. A careful reading of Sections 41, 42, 43, 50, 51 and 55 of the N.D.P.S. Act makes it clear, that they are

mandatory in nature and the consensus of the views of various High Courts with regard to non-compliance of the same by any of the investigating

agency is that it vitiates the investigation and trial. The said provisions being mandatory, have to be strictly considered, particularly in view of the

minimum sentence of imprisonment and fine prescribed under the Act without any discretionary power to Court to impose a lesser sentence of

imprisonment or fine irrespective of the quantum of recovery. It is made clear from the very reading of Section 42 of the Act that the petitioner

Assistant Director of Directorate of Revenue Intelligence, is empowered to act upon the provisions as an investigating agency and accordingly,

empowered to make search, arrest and recover the contraband, investigate and prosecute the case.

It is worthwhile to note at this juncture that the Courts have repeatedly held that the non-compliance with mandatory provisions of Sections 41,

42, 43, 50, 51, 55 and 57 of the N.D.P.S. Act, vitiates the investigation being done by any investigating agency, which can be certainly taken note

of while the High Court is exercising its power u/s 439 of the Code of Criminal Procedure in spite of Section 37 of the N.D.P.S. Act. In Narcotics

Control Bureau Vs. Kishan Lal and others, , the Supreme Court, has held as follows :

The NDPS Act is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of operations

relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of S. 37 of NDPS

Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, in our view, it cannot be held that the

High Court''s powers to grant bail under S. 439 Cr. P.C. are not subject to the limitation mentioned under S. 37 of NDPS Act. It can thus be seen

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 Cr. P.C. should be subject to such special enactment. In interpreting the scope of a such statute the dominant purpose underlying the

statute has to be borne in mind.

S. 37 of the NDPS Act 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 are satisfied. Consequently, the

power to grant bail under any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in S. 37 of the NDPS Act.

The powers of the High Court to grant bail under S. 439 are subject to the limitations contained in the amended S. 37 of the NDPS act and the

restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail.

In Lawarance D''souza Vs. State of Maharashtra and another, a learned Single Judge of the Bombay High Court, has held as follows :

The Provisions of Ss. 41 to 58 of the Act would be applicable right from the inception of the investigation. It would be fallacious and pernicious to

leave the question of their compliance to be looked into only at the stage of trial. Such a situation is fraught with the danger of the prosecution

agency ignoring altogether the compliance of the provisions which contain in-built safeguards to the accused, with impunity and with ulterior

purpose in a given case. That would bring into peril the liberty of the citizen guaranteed under Art. 21 of the Constitution. The accused therefore

should be entitled to rely upon the infirmities with all its rigour even at the stage of bail. There are stringent limitations on grant of bail under S. 37 of

the Act. Courts must, therefore, be vigilant to protect the rights of the accused. There can be no quarrel that an offender under the Act must be

apprehended and severely punished, provided, however, that he is found guilty. That possibility has to be found to exist at the stage of bail on

prima facie consideration of the matter and only after reaching satisfaction that he is reasonably believed to be guilty. For that purpose, the

compliance with procedural requirements must be insisted upon and must be shown, at least, prima facie, at the stage of bail.

In Sundaresan @ Meganathan @ Mega v. State, Rep. by Inspector of Police, etc. 1993 L.W. (Crl.) 371, a Division Bench of this Court, also

held the view that the non-compliance of the mandatory provisions in-built in the various provisions of the N.D.P.S. Act by the investigating

agency, whoever it may be, can be considered by the High Court while exercising the power in granting the bail u/s 439 of the Code irrespective of

the total embargo provided u/s 37 of the N.D.P.S. Act fettering the High Court''s power keeping in view the object and purpose of the N.D.P.S.

Act.

Thus, from the above position of law enunciated by the Apex Court as well as other High Courts, as aforesaid, it is made clear, that the total

embargo and restriction placed on the Court to grant bail u/s 439 of the Code though available in Section 37 of the N.D.P.S. Act, the non-

compliance of the mandatory directions in-built in Sections 41 to 58 of the NDPS Act can be considered while exercising the power to grant bail

u/s 439 Cr. P.C. For the said reason only, the legislature has provided clause (b) of Section 37 in the manner as extracted hereunder :

(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 his

own bond unless -

(1) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(2) 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 the 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.

Thus, it is seen that only the non-compliance of the mandatory directions in-built in Sections 41 to 58 of the N.D.P.S. Act, vitiating the very

investigation being conducted into the alleged offence under the N.D.P.S. Act, can entitle such of the accused person to be enlarged on bail, after

following the procedure laid in clause (b) of Section 37(1). On no other ground, the court can grant the bail pursuant to the total embargo, rigour

and limitations provided in Section 37 of the N.D.P.S. Act, as held by the Apex Court in the above referred citation.

There is no provision prescribed in the N.D.P.S. Act for sending the seizure mahazars to the court immediately along with the remand report or

otherwise by the seizing officer like the regular police officers, who are expected to act under the Code of Criminal Procedure. It is seen that while

the N.D.P.S. Act clearly empowers the Directorate of Revenue Intelligence, an independent agency, to investigate the offences under the said Act,

it has not provided any mode or procedure for despatching the seizure mahazar in original along with the remand report or subsequently, to the

court of law, like the relevant procedures laid down in Sections 100 and 165 of the Code of Criminal Procedure. The Bar has admitted the above

position of law. In this context, it has to be seen as to whether the non-sending of the seizure mahazar along with the remand report in the instant

case provides a ground for the learned Sessions Judge to grant the bail. The answer for the same is clearly in the negative for the simple reasoning

that the necessity to sent the seizure mahazar by the petitioner in this case to the court of law along with the remand report is neither a Procedural

mandate nor a mode prescribed by the relevant law. However, it is seen that the recovery of the contraband was made under the cover of mahazar

attested by two independent witnesses, prepared at about 6.50 A.M. on 8-7-1993 and this factum has been clearly specified in the remand report

itself which has been sent to the court along with the copies of the statements recorded from the accused and that all the same has been admitted

by the accused when they were produced before the learned Magistrate. It has to be noted further that a copy of the mahazar, prepared by the

petitioner, has been served upon the accused. Under such circumstances, it is not known from where and under what provision of the Procedural

Law, the production of seizure mahazar has become compulsory or a necessary formality, as observed by the learned Sessions Judge while

granting the bail. A careful analysis of the present situation in the context of the above case laws on the procedurals laid down under the N.D.P.S.

Act and the Code of Criminal Procedure, clearly demonstrates the fact that the non-production of the mahazar either wantonly or inadvertently,

does not vitiate the investigation in this case.

20A. However, it has to be noted that the non-sending of the seizure mahazar as well as the contraband inviting the offence under the N.D.P.S.

Act to the Court as expeditiously as possible, will pose a danger to the liberty of a citizen who is accused of an offence, due to embellishments or

implication of false persons and filling up of the legal gap or lacunae. If the investigating agency, which is different from that of a regular police, is

clothed with the power for indefinite period, to with-hold the seizure mahazar, an important document, which came into existence at the very

inception of the investigation, and is not sent to the Court immediately, it will result in the danger of introduction of a coloured or concocted version

and exaggerated account subsequently. It is in this context, the present matter is viewed and has to be considered though not as a matter of

Procedural Law but however, a policy necessarily to be adopted by the courts of law on the basis of principles or sound judicial policy. In this

regard, I feel it relevant to quote the observation made by the Apex Court in Thulia Kali Vs. The State of Tamil Nadu, , which is as follows :

On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of introduction of coloured version,

exaggerated account or concocted story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first

information report should be satisfactorily explained.

Following the said rationale held by the Apex Court, a Division Bench of this Court, in In Re: Karunakaran and Another, has held, that several

important documents which came into existence during the course of investigation, were to be sent to the court without any delay. It has

categorised the important documents and has further held, that if they are not sent causing any delay, it will vitiate the case of the prosecution as

well. Ratnavel Pandian, J. as he then was, in K. Vadivelu, In Re 1976 L.W. Crl. 115, has held the same view, that important documents to be

relied on by the prosecution, should be sent to the court without any possible delay. Therefore, Courts are unanimous in expressing their

consensus, that vital documents should be sent to the Court without any possible delay and as expeditiously as possible, as a matter of principles of

sound judicial policy. If this is the position, I have no hesitation to hold that the despatching of the seizure mahazar by the petitioner herein to the

court as expeditiously as possible is a legal duty which is to be strictly followed atleast from now onwards by the petitioner. I have held the view

for the reasoning that the absence of specific provisions in the N.D.P.S. Act for sending the mahazar immediately to the court cannot be allowed to

be taken advantage of by the petitioner for the reasons aforesaid.

But however, with regard to the instant case on hand, in my considered view, Section 37(b) of the N.D.P.S. Act, provides a total embargo for

granting bail to the respondent. If a person accused of an offence under the N.D.P.S. Act is to be enlarged on bail during the pendency of

investigation, courts should put on extra caution that such person cannot come within the teeth of Section 37 of the N.D.P.S. Act and except on

the said ground, on no other instances or circumstances, in the context of the total embargo provided in the said Section of law, an accused under

the N.D.P.S. Act is to be allowed to go on bail. In the instant case, if the above principle of law and the rationale is to be applied, it is manifestly

clear, that the learned Sessions Judge, has not adverted his mind to the above said aspect at all, while enlarging the petitioner on bail. In Narcotics

Control Bureau v. Kishan Lal & Others 1991 L.W. (Crl.) 53, the Apex Court, while dealing with the appeal filed by the Narcotics Control Bureau

was inclined to cancel the bail for all the reasons quoted therein. Therefore, while considering all the circumstances referred to above, for the

simple reason that the seizure mahazar was not made available to the court then, it is not correct for the learned Sessions Judge, to grant bail to the

respondent herein. It is manifest, that the power of the court to grant bail for the offences under the N.D.P.S. Act pursuant to the rigour of Section

37 of the Act, has to be on strict limitations and except for the reasonings of non-compliance of the mandatory provisions of the Act, which vitiates

the very investigation itself, no bail can be granted. It is not the finding of the learned Sessions Judge, that any of the mandatory provisions of the

N.D.P.S. Act has been violated during the course of investigation. But however, learned Sessions Judge, has accepted compliance of the

procedural norms by the petitioner and particularly, the fact that the respondent has accepted the seizure and the confession statement given by the

co-accused. In short, the respondent had neither retracted his confession statement, nor expressed any grievance before the learned Magistrate at

the time of remand of judicial custody. While that being so, in granting the bail, by passing the impugned order, with every constraint, I am to hold,

that the very object and purpose of the N.D.P.S. Act, has been totally overlooked by the learned Sessions Judge, which is not within the province

of legal amity. For all the above reasons, the impugned order is liable to be set aside and the bail granted in favour of the petitioner has to be

cancelled.

In the result, the petition succeeds. Accordingly, the impugned order passed by the learned Principal Sessions Judge, Madras, in Cr. M.P. No.

3732 of 1993 dated 23-7-1993 is set aside and the bail granted is cancelled. The respondent is hereby directed to surrender immediately. If not,

the petitioner is hereby directed to take necessary steps to secure him in accordance with law. The petition is ordered accordingly.