MUNNALAL TIWARI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The aforesaid applications under S. 439, Code of Criminal Procedure, 1973 for grant of bail to the accused persons who have been arraigned as accused u/S. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') came up for hearing before Dipak Misra, J. wherein learned Counsel for the applicants, relying on a single Bench decision of the Karnataka High Court in A. V. Dharmasingh v. The State of Karnataka by the State Public Prosecutor, Bangalore, 1993 Cri LJ 94, and a Division Bench decision of Patna High Court, Kamlesh Kumar v. State of Bihar, (1994) 2 Pat PLJR 600 : (1995) 1 EFR 74, contended that in view of quantum of punishment provided u/S. 20(b)(i) of the NDPS Act in respect of the offence relating to "GANJA" the rigours contained in Section 37 would not apply, and, therefore, the bail application can be considered independent of the provision contained in Section 37 of the NDPS Act. The State counsel relying on the decisions of Orissa and Madras High Courts, Rajendra Panda v. State of Orissa, (1992) 1 Crimes 79 : (1992 Cri LJ 491); Sundaresan alias Meganathan alias Mega v. State, 1993 Cri LJ 3342, contended that offence punishable u/S. 20(b)(i) comes within the ambit of Section 37(1)(b), therefore, the rigours of Section 37 would apply. In view of the cleavage of opinion of the High Courts the learned single Judge was of the opinion that the matter calls for an authoritative pronouncement by a larger Bench. Hence these matters have come up before us for hearing.

(2.) The question for our consideration is while considering an application for bail by a Court to the accused charged for an offence punishable u/S. 20(b)(i) of the NDPS Act can be considered independent of Section 37 of the NDPS Act. To appreciate the contention it would be appropriate to quote Section 20 and Section 37 of the NDPS Act :

(3.) From a bare look to Section 37, it is evident while considering an application for bail u/S. 439, Cr.P.C. by an accused for an offence punishable for a term of imprisonment of five years or more under the NDPS Act, the limitations specified in clause (b) of sub-section (1) of Sec-tion 37 comes into play. The Supreme Court in case of Narcotics Control Bureau v. Kishanlal, 1991 Cri LJ 654 : AIR 1991 SC 558, considered the scope and effect of Section and observed in para 6 thus :