(1.) The petitioners Hussain and MD. Hafijuddin Khan, who were arrested by the NCB in connection with a case relating to an offence punishable under section 21 (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 applied for bail before this Hon'ble High Court and the same was listed before a division bench composed of two Hon'ble Judges. Since, the Judges were divided in their opinion as to the question of grant of bail, the said bail application has now been referred before this bench for its opinion. It appears while the presiding Judge Subhra Kamal Mukherjee, J. was inclined to allow the prayer for bail of both the petitioners, the companion Judge Indrajit Chatterjee, J. dissented and declined.
(2.) It be noted on April 8, 2015, when this application was taken up for hearing for the first time, the learned Public Prosecutor intervened seeking leave of this court to participate in the hearing and submitted the State was to regularly prosecute quite a large number of accuseds involving in the commission of offence punishable under the NDPS Act and having regards to the fact various substantial questions of law arose for interpretation and decision in this application, the State was vitally interested with the fate of this application. The learned counsel for the petitioners conceded to such prayer and raised no objection and the counsel of the NCB, on the other hand insisted on that. This court was also of the opinion the assistance of the learned Public Prosecutor would certainly help to reach to a just decision in the matter. Accordingly, the prayer of the learned Public Prosecutor was allowed.
(3.) According to Subhra Kamal Mukherjee, J. firstly, there was complete infringement of the mandatory provision of section 50 of the NDPS Act during the search and seizure and secondly, the provisions of section 80 of the NDPS Act read with the notification issued by the Central Government under the provisions of section 26A of the Drugs and Cosmetics Act, 1940, which makes manufacture, manufacture for sale, sale and distribution of dextropropoxyphene is an offence must override the provisions of the NDPS Act, and therefore mere possession of dextropropoxyphene constitute no offence, punishable under the NDPS Act.
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