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2019 (9) TMI 1101 - HC - Indian LawsSmuggling - Cocaine - section 37 of NDPS Act - offence punishable under Section 8 read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - release of accused on bail - HELD THAT:- Section 37 of the NDPS Act says that twin-conditions have to be adhered to by the court while dealing with the parameters of Section 439 of Cr.PC. The NDPS Act is an Act enacted with an object to make stringent provision for control, regulation and operation relating to NDPS Act. It is a special enactment, Section 37 of the Act, states that a non-abstante clause and is in negative terms limiting the scope and applicability of the provision of criminal procedure for bail. The non abstante clause with which Section 439 of Cr.PC., should be given with true manner and clearly it is intended to restrict the power to grant bail. The power to grant bail under any of the provisions of Cr.p.c. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act. It is clear that Section 37(b)(i) & (ii) of the Act are the specific limitation prescribed under the provision i.e., the Public Prosecutor has to be given an opportunity to oppose the application and secondly, the court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. The non compliance of mandatory provisions are also to be taken into consideration by the courts while dealing with the bail matters particularly u/s.37 of the Act. If the mandatory provisions are not strictly followed, if it would otherwise prejudice the accused, in such an eventuality, the rigor of Section 37 of the NDPS Act will be diluted in such an eventuality, the accused may be entitled to be released on bail. Under section 37 of the Act, the court has to tentatively make an evaluation to find out that, the accused was not guilty for the purpose of granting bail. If any doubt arises, in such an eventuality, an opportunity should be given to the prosecution to establish the same - In this particular case also, the quantitative analysis is also detected i.e., the entire 400 grams contained Cocaine and out of that, 5 grams was taken out in the presence of the panch witnesses. When such prima facie material is available, it cannot be said that merely because quantitative analysis report has not beenreceived, in any manner takes away the test conducted by the NCB officials by using the Field Drug Detection Kit tentatively and that the pouches contained 400 grams of Cocaine and out of that 5 grams of each were taken for the purpose of qualitative analysis. The accused is not guilty of the offence alleged against her - she is not entitled to be enlarged on bail - petition dismissed.
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