Holding

The High Court's power to grant bail under Section 439 CrPC is subject to, and cannot override, the limitations imposed by Section 37 of the NDPS Act.

Summary

The respondents were arrested for offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act and were denied bail, leading them to file writ and criminal miscellaneous petitions seeking bail under Section 167(2) of the Code of Criminal Procedure (CrPC) on grounds of delayed charge‑sheet and illness. The Delhi High Court held that the restrictions on bail imposed by Section 37(2) of the NDPS Act on Special Courts did not bind the High Court’s power under Section 439 CrPC. The Narcotics Control Bureau appealed, arguing that the non‑obstante clause in Section 37 overrides any statutory provision granting bail. The Supreme Court examined the language of Section 37, the principle that a special enactment prevails over a general one, and relevant precedents, concluding that the High Court’s power to grant bail is subject to the conditions laid down in Section 37 of the NDPS Act. Consequently, the appeal was allowed and the High Court’s view was reversed, confirming that the limitations on bail in the NDPS Act apply to the High Court as well.

Issues considered

Whether the limitation placed on Special Courts under Section 37(2) of the NDPS Act is to be treated as a fetter on the High Court's power to grant bail under Section 439 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 4, s. 439
Defence and Internal Security of India Rules, 1977s. Rule 184
Narcotic Drugs and Psychotropic Substances Act, 1985s. 36, s. 36-A, s. 37
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20(8), s. 20(9)

Subjects

bailNDPS ActSection 37Section 439non‑obstante clausespecial courtshigh court jurisdictioncriminal procedurenarcoticsspecial enactment

Judgment

NARCOTICS CONTROL BUREAU
v. A
KISHAN LAL AND OTHERS

JANUARY 29, 1991

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA B
REDDY, JJ.]

_ _,,
Narcotic Drugs and Psychmropic Substances Act, 1985: Sections
36 and 37(2)-Special Courts-Powers to grant bail-Restrictions-
Whether to be treated as fetters on High Court to grant bail under s. 439,
Cr. P.C.
~) c
Code of Criminal Procedure 1973: Section 439-Bail-High
Court's power-Whether restricted bys. 37(2) of the Narcotics Drugs
and Psychotropic Substances Act, 1985.

The respondent~ in the appeals who were arrested for offences D
under various sections of the Narcotic Dmgs and Psychotropic Subs-
tances Act, 1985, were refused bail, and were remanded to judicial
custody. On the basis of the report the Magistrate took cognizance, and
remanded them to judicial custody.

The respondents ided writ petition and criminal miscellaneous E
.. ~
petition before the High Court seeking bail under s. 167(2), Criminal
Procedure Code on the grounds of belated submission of the charge-
sheet, and on account of illness. The matter was referred to a Division
Bench which held that the limitations placed on the Special Cc.urt under
s. 37(2) of the Narcotic Dmgs and Psychotropic Substances Act could
not be read as fetters on the High Court in exercise of its power under , F
s. 439, Cr. P.C. to grant bail.

Aggrieved, the Narcotics Control Bureau appealed to this Court,
and contended that the High Court had no untremelled powers in the
matter of granting bail, as the provisions of s. 37 of the NDPS A::.
override those of s. 439, Cr. P .C. G

On the 9.'!estion: whether the limitation placed on the Speciai
Court under s. 37(2) of the NDPS Act is to be treated as fetters on the
powers of the High Court also in granting bail under s. 439, Cr. P.C.

Disposing of the appeals, this Court. H

139_
140 SUPREME COURT REPORTS [1991] 1 S.C.R.

A HELD: 1. The powers of the High Court to grant bail under
s. 439, Cr. P.C. are subject to the limitations contained in the amended
s. 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, 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. [151E]
B
2. WJten there is a special enactment in force relating to the
manner of investigation, enquiry or otherwise dealing with offences, the
other powers under the Code of Criminal Procedure should be subject
to such special enactment. In interpreting the scope of such a statute the
dominant purpose underiying the statute has to be borne in mmd. [145C]

c 3.1 The Narcotic Drugs and Psychotropic Substances Act, 1985 is
a special enactment, enacted with a view to make stringent provisions
4
for the control and regulation of operations relating to nar:cotic drugs
and psychotropic substances. That being· the underlying object and
particularly when the provisions of s. J7 of the NDPS Act are in nega-
tive terms limiting the scope of the applicability of the provisions of the
D
Criminal Procedure Code regarding bail, It cannot be said that the
High Court's power to grant bail under s. 439, Cr. P.(:. are not subject
to the limitation mentioned under s. 37 of the NDPS Act. [144E-G]

3.2 Section 37 of the NDPS Act starts with a non-obstante clause
stating that notwithstanding anything contained in t,he Code of Crimi-
nal Procedure, 1973 no person accu~d of an offence prescribed therein
shall be released on bail unless the conditions contafued therein were
satisfied. [144E; 145F]

3.3 The non-obstante clause with which s. 37 of the NDPS Act
-
starts should be given its due meaning and clearly it is intended to
F
restrict the powers to grant bail. [144G]

3.4 In case of inconsistency betweens. 439, Cr. P.C. ands. 37 of
the NDPS Act, s. 37 prevails.

G
3.5 Consequently the power to grant bail under any of the provi-
sions of the Code of Criminal Procedure should necessarily be subject to
•
the.conditions mentioned ins. 37 of the NDPS Act. [145F, G]
)-.
Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others,
(1983] 1 SCR 393 and Balchand Jain v. State of Madhya Pradesh,
H [1977] 2 SCR page 52, relied on.
BUREAU v. KISHAN LAL [REDDY, J.) 141

Usmanbhaz Dawoodbhaz Memon and Others v. State of Gujarat,
) [1988] 2 sec 271, referred to.
A

4. The two accused-respondents being on bail for a long time
· under. the orders of the High Court and the Narcotics Control Bureau
not pressing the cancellation of bail, the matter need not be remitted to
the lligb Court, and the respondents would confutue to be on bail. [151F] B

---/ CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 810-811of1989.

From the Judgment and Order dated 22.9.1989 of the Delhi High
Court in Crl. W.P. No. 622 of 1988 and Crl. Misc. Main Petition
No. 1132 of 1988.
c
J.S. Arora, Sudhansu S. Das, Satish Agrawal and N.P. Kaushik
-..,., for the Appellant .

. V.C. Mahajan, A.K. Ganguli, Ashok Bhan, A. Subhashini, P.P. D
Tripathi a_nd S.K. Sabharwal for the Respondents.

The Judgment of the Court was delivered by

~ K. JAYACll:ANDRA REDDY, J. The High Court of Delhi by.a
common order in two petitions filed under The Narcotic Drugs & E
Psychotropic Substances Act, 1985 ('NDPS Act' for short) held that
the restrictions placed on the powers of the Court to grant bail in
certain offences under the amended Section 37 of the NDPS Act are
not applicable to the High Court. Aggrieved by the said order, the
Nan::otics Control Bureau has filed these two appeals.

The petitioners before the High Court in two different cases
were arrested for offences under various Sections of the NDPS Act.
They were refused bail and remanded to judidal custody. On the basis
of the report the Magistrate concerned took cognizance and remanded
them to judicial custody. The petitioners filed a writ petition as well as
a criminal miscellaneous petition seeking bail firstly on the ground that G
they are entitled to· be released on bail as required under Section
167(2) of the Code of Criminal Procedure as the charge-sheet was filed
at a belated stage and secondly on the ground of illness. A learned
Single Judge referred this matter to a Division Bench and the Division
Bench by the impugned order held that the limitations placed on the
Special Coui:t under Section 37(2) of the NDPS Act cannot be read as H
142 SUPREME COURT REPORTS [1991] 1 S.C.R.

A fetters on the High Court in exercise of powers under Section 439
Cr. P.C. for granting bail. The only limited question to be decided in
these appeals is whether the view taken by the High Court is right or
wrong and we may also mention that leave was granted only to this
limited extent.
B
The learned counsel appearing for the appellants submitted that
the High Court has misconstrued the provisions of Section 36-A and 37
of the NDPS Act and that latter Section as amended starts with the
non-obstante clause limiting the scope of the provisions of the Cr. P .C.
in the matter of granting baii and as such the High Court has no
untremelled powers to grant bail inasmuch as the provisions of the
c amended Section 37 of the NDPS Act override the provisions of
Section 439 Cr. P .C.

We may at th~s stage note the relevant provisions of NDPS Act.
The preamble to the NDPS Act shows that the object of the Act is to
consolidate and amend the law relating to narcotic drugs and to make
D
stringent provisions for the control and regulation of operations relat-
ing to narcotic drugs and psychotropic substances etc. Sections 15 to 35
deal with various offences and penalties. Section 36 provides for con-
stitution of Special Courts and empower the Government to constitute
Special Courts and a person shall not be qualified for appointment as a
Judge of the Special Court unless he is immediately before such
E
appointment, a Sessions Judge or an Additional Sessions Judge.
Section 36-A enumerates the offences triable by Special Courts and
also deals with the procedure regarding the detention of the accused
when produced before a Magistrate. Sub_-section (b) of Section 36-A
lays down that if the Magistrate to whom an accused is forwarded
..
under Section 167 Cr. P.C., considers that the detention of such
F
person for fifteen days is unnecessary he shall forward him to the
Special Court having jurisdiction who shall take cognizance and pro-
ceed with the trial. Sub~section (3) of Section 36-A reads thus:

"Nothing contained in this section shall be deemed to
affect the special powers of the High Court regarding bail
G
under-Sectio:ri 439- of the Code of Criminal Procedure, 1973
(2 of 1974), and the High Court may exercise such powers
including the power under clause (b) of sub-section (1) of
that section as if the reference to "Magistrate" in that
section included also a reference to a "Special Court" con-
stituted under Section 36."
BU:REAU v. KISHAN LAL (REDDY, J.] 143

Now let us note Section 37 as amended in the year 1989 and the same is
in the following terms:
A

"37. Offences to be cognizable and non-bailable-( 1)
Nothwithstanding anything contained in the Code of Cri-
minal Procedure, 1973 (2 of 1974),-
B
(a) every offence punishable under this Act shall be cognizable;-
--< (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 on his own bond unless-

- (i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
c

(ii) where the Public Prosecutor oppose the application, the
court 'is satisfied that there are reasonable grounds for believing that
h.e is not guilty of such offence and that he is not likely to commit any D
offence while on bail.

(2) The limitations on 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." E

Now it becomes necessary to extract Section 439 Cr. P.C. which reads
- as under:

"439. Special powers of the High Court or Court of
Session regarding bail-(1) A High Court or Court of F
Session may direct-

(a) that any person accused of an offence and in custody be
----- released on bail, and if the offence is of the nature specified
in sub-section (3) of Section 437, may impose any condition
which it considers necessary for the purposes mentioned in G
that sub-section;

(b) that any condition imposed. by a Magistrate when
releasing any person on bail be set aside or modified;

~rovided that the High Court or the Court of Session ~all, H
144 SUPREME COURT REPORTS [1991] 1 S.C.R.

before granting bail to a person who is accused of an
offence which is triable exclusiv~ly by the Court of Session '
or which, though not so triable, is punishable with impri-
sonment for life, give notice of the application for bail to
the Public Prosecutor unless it is, for reasons to be
recorded in writing, of opinion that it is not practicable to
B
give such notice.

(2) A High Court or Court of Session may direCt that any
person who has been released on bail under this Chapter be
arrested and commit him to custody."

c The High Court having taken into consideration sub-section (3)
of Section 36-A took the view that the limitations placed on the Special
Courts cannot be read as fetters in its exercise of the powers under
Section 439 Cr. P.C. In this context, the Division Bench referred to
sub-sections (8) and (9) of Section 20 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 ('TADA Act' for short) which are
D
similar to Section 37 of NDPS Act and also relied on a judgment of this
Court in Usmanbhai Dawoodbhai Memon and Others v. State of
Gujarat, [1988] 2 SCC 271 a case which arose under the TADA Act.
We shall refer to this judgment at a later stage ·after analysing the
scope and effect of Section 37 of the ND PS Act.
E
Section 37 as amended starts with a non-obstante clause stating
that notwithstanding anything contained in the Code of Criminal Pro-
cedure·, 1973 no person -accused of an offence prescribed therein shall
be released on bail unless the conditions contained therein were
satisfied. The NDPS Act is a special enactment and as already noted it
-
was enacted with a view to make stringent provisions for the control
F
and regulation of operations relating to narcotic drugs and psycho-
tropic substances. That being the underlying object and particularly
when the provisions of Section 37 of NDPS Act are in negative terms
limiting the scope of the applicability of the provision& of Cr. P.C.
regarding bail, in our view, ·it cannot be held that the High Court's
powers to grant bail under Section 439 Cr. P.C. are not subject to the
G limitation mentioned under Section 37 of NDPS Act. The non-
obstante clause with which the Section starts should be given its due
meaning and clearly it is intenqed to restrict the powers to grant bail.
In case of inconistency between Section 439 Cr. P.C. and Section 37 of
the NDPS Act, Section 37 prevails. In this context Section 4 Cr. P.C.
may be noted which reads thus:
H
BUREAU v. KISHAN LAL [REDDY, lJ 145

"(4) Trial of offences under the Indian Penal Code and A
I other laws-(1) All offences under the .Indian Penal Code
~
(45 of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
B
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to
the same provisions, but subject to any enactment for lhe
--.....' time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing
with such offences."

It can thus be seen that when there is a special enactment in force
relating to the manner of investigation, enqu!ry or otherwise dealing
with such offences, the other powers under Cr. P.C. should be subject
~ to such special enactment. In interpretating the scope of such a statute
Y the dominant purpose underlying the statute has to be borne in mind.
D
In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983]
1 SCR 393 regarding the mode of interpretation the Supreme Court
observed as follows:

"The dominant _pur_pose in construing a statute is t9 ascer-
tain the intention of Parliament. One of the well recognised
canons of construction is that the legislature speaks its E
mind by use of correct expression and unless there is any
ambiguity in the language of the provision, the Court

- should adopt literal construction if it does not lead to an
absurdity."

As already noted, Section 37 of the NDPS Act starts with a non- F
--•' obstante clause stating that no~ithstandfo_g 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 con-
tained 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 Section 37 of the NDPS Act. G

We sh~ll now refer to some of the decisions of this Court dealing
with the analogous provision In other speCiaJe-nactments. Rule 184 of
the D_efence and Internal Securi~ of India B.ul~§.,_ :J97!_which is analo-
gous to Sec. 37 of the ~DPS Act runs as fo!l_~ws: - -
H
SUPREME COURT REPORTS [1991] 1 S.C.R.

A "Rule 184. Notwithstanding anything contained in the
Code of Criminal Procedure, 1898 (V of 1898) no person ~
accused or convicted of a contravention of these Rules or
orders made thereunder shall, if in custody, be released on
bail or his own bond unless-

B (a) the prosecution has been given an opportunity to
oppose the application for such release, and

(b) where the prosecution opposes the application and the r---
contravention is of any such provision of these Rules ,or
orders made thereunder as the Central Government or the
State Government may by notified order specify in this
c behalf, the Court is satisfied that there are reasonable
grounds for believing that he is not guilty of such con-
travention."
'T
The.Rule commences with a non-obstante clause and in its operative
D part imposes a ban on release on bail of a person accused or convicted
of a contravention of the Rules. It imposes fetters on the exercise of
the power of granting bail in certain kinds of cases. In Balchand Jain v.
State of Madhya Pradesh, [1977] 2 SCR 52 a question arose whether
the power to grant anticipatory bail under Section 438 can stand side
by side with Rule 184 of whether former provision is overriden by the ,;......
E latter. This Court held that Rule 184 does not stand in the way of
Court of Sessions or High Court granting anticipatory bail on the
ground that the two provisions operate at two different stages. Of
- course, in the instant case, we are not concerned with Section 438 but
the observations regarding the scope of Rule 184 are relevant which
read thus:
F U-
"But even if Rule 184 does not apply in such a case, the
policy behind this Rule would have to be borne in mind by -
the Court while exercising its power to grant 'anticipatory
bail' under Section 438. The Rule making authority ob-
viously thought offences arising out of contravention of
G Rules and orders made there-under were serious offences
as they might imperil the defence of India or civil defence
or internal_ security_ 9r public safety or maintenance of
public order or hampe! main!enance _s>f supplies and ser- >- ·
vices to the life of the community and hence it provided in
Rule 184 that no person accused or convicted or contraven-
H tion of any Rule or order made under the Rules, shall be
BUREAU v. KISHAN LAL [REDDY, J.] 147

released on bail unless the prosecution is given an oppor7
A
tunity to oppose the application for such release and in case
the contravention is of a Rule or order specified in this
behalf in a notified order, there are reasonable grounds for
believing that the person concerned is not guilty of such
contravention. If these are the conditions provided by the
Rule making authority for releasing on bail a person arres- B
ted on an accusation of having committed contravention of

--
-
any Rule or order made under the Rules, it must follow a
fortiori that the same conditions must provide the guidelines
while exercising the power to grant 'anticipatory bail' to a.
person apprehending arrest on such accusation, though they'
would not be strictly applicable."
c
(emphasis supplied)'

Fazal Ali, J. in his concurring judgment also held thus:
y

"(4) that in cases covered by r. 184 of the Rules the Court D
exercising power under s. 436 or s. 438 of the Code has got
to comply with the conditions mentioned in clauses (a)&.
(b) of r. 184 and only after the Court has complied with
those conditions that an order under any of these sections
of the Code in respect of such offences could be passed."
E
In Usmanbhai's case a question whether the provisions of sub-sections
(8) and (9) of Section 20 of the TADA Act limit the scope of Sections
437 and 439, came up for consideration. The language of sub-sections·
(8) and (9) of-section- 20 is analo-gous to Section 37 of NDPS Act and
they read thus:
F
"(8) Notwithstanding anything contained in the Code, no
person accused of an offence punishable under this Act or
any rule made thereunder shall, if in custody, be released•
on bail or on his own bond unless-

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

(b) 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. H
148 SUPREME COURT REPORTS Ll991] 1 S.C.R.

(9) The llmitations on granting oT ba"lf specified Iri sllb-
A -Section (8) are in addition to the limitations under the Code
or any other ~aw for the time being in force on granting of
bail."

It may b~ noted at this stage that the power of th~ High Court or the
B SessioQs _CoJ.Irt to _granf aritidpat~ry bail lias been com_.Pletely-taken
away unde_r Section 20(7) of tl;le TADA Act·.-:rhe contention was'that
the source ~f power of a designated court tq grant bail is under Section
437 subject to some limitations under Section 20(8) and that it does not
in any manner affect the power of the High Court independently under
Section 439 to grant bail. It is also contended that to take away the -
-
power of the High Court would tantamount to strike at the very foun-
c dation .of an!ndependent fudiciaryfree from executive control. After
considering these submissions this Court heid that: -

"Though there is no express provision excluding the _
applicability of Section 439 of the Code similar'fo the one y·
D contained in Section 20(7) of the Act in relation tb a case
involving the arrest of any person on an accusation of
having committed an offence punishable under the Act or
any rule made thereunder, but that result must, by neces-
sary implication, follow. It is true that the source of power
of a Designated Court to grant bail is not Section 20(8) of
E the Act as it only places limitations on such power. This is __;..___
made explicit by Section 20(9) which enacts that the limita-
tions on granting of bail specified in Section 20(~) are 'in
addition to the limitations under the Code or any other law
for the time being in force'. But it does not necessarily
follow that the power of a Designated Court to grant bail is
F relatable to Section 439 of the Code.it cannot be doubted
that a Designated Court is 'a court other than the High
Court or the Court of Session' within the meaning of ----
Section 437 of the Code. The exercise of thepower to grant
bail by a Designated Court is not only subject to the limita-
tions contained therein, but is also subject to the limitations
G placed by Section 20(8) of the Act."
(emphasis supplied)

Having held so, the learned Judge proceeded to consider the contro- )-
versy as to the power of the High Court to grant bail under Section 439
Cr.P.C. Having regard to the explicit bar under Section 19(2) of the
H TADA Act excluding_the iurisdiction of the High Court ente_rtain an
BUREAU v. KISHAN LAL [REDDY, J.] 149

appc::al or revision ag_ainst the judgment of the designated court, it. is
held that the High Court had no jurisdiction to entertain an applica- A
tion for bail under Section 439 or Section 482 of the Code of Criminal
Procedure. However, regarding the construction of non-obstante
clause in Sec. 20(8) of the Act, th~s Court held as under:

''The controversy as to· the power of the High Court to B
grarit bail under Section439 of the Code· must also turn on
the construction of Section 20(8) of the AcL It commences
with a non-obstante clause and in its operative part by the
use of negative language prohibits the enlargement on bail

.. of any person accused of commission of an offence under
the Act, if in custody, unless two conditions are satisfied .
The first condition is that the prosecution must be given an
opportunity to oppose the application for such release afld
the second condition is that where there is such opposition,
the court must be satisfied that there are reasonable
grounds for believii.ig that he is not guilty of such offence
and that he is not likely to commit any offence while on D
bail. If either of these two conditions is not satisfied, the
ban operates and the person under detention cannot be
released on bail. It is quite obvious that the source of
power of a Designated Court to grant bail is not Section
20(8) of the Act but it only pla~es limitations on such
powers. This is implicit by Section 20(9) which in terms B
provides that the limitations on granting of bail specified in
sub-section (8) are in addition to the limitations under the
Code or an_y other law for !he time befog fo. force on grantii1g
·of ball. It therefore follows that the power derived \)y a
Designated Court to gri!!lt bail to a person accused .of ap
offence under the' Act, if'in custody, is derived from the F
Code and not from Section 20(8) of the Act."

It can thus be seen that even in Usmanbhai's case -also there is no
observation supporting the view taken by the High Court in the
impugned judgment. As a matter of fact in Usmanbhai's case Sen, J.
who spoke for the Bench, after referring to the ratio laid down in G
Balchand Jain's case observed thus:

-' "The view expressed in Balchand Jain case is not applic-
able at all for more than one reason. 'there ·was nothing in
the Defence and Internal Security of Indfa Act or the Rules
. frame~'\ther~der which would exclude the jurisdiction H
150 SUPREME COURT REPORTS [1991] 1 S.C.R.

and power of the High Court altogether. On the Cbntrary,
A
Section 12(2) of that Act expressly vested in the High
Court the appellate jurisdiction in certain specified cases.
In view of the explicit bar in Section 19(2), there is exclu-
sion of the jurisdiction of the High Court. It interdicts that
no appeal or revision shall lie to any court, including the
B High Court, against any judgment, sentence or order, not
being an interlocutory orqer, of a Designated Court. The
Act by Section 16( 1) confers the right of appeal both on
facts as well as on law to the Supreme Court. Further while
it is true that Chapter XXXIII of the Code is still preserved

c
as otherwise the Designated Court would have no power to
grant bail, still the source of power is not Section 439 of the
Code but Section 437 being a court other than the High
Court or the Court of Session. Any other view would lead
..
to an anomalous sit:.iation. lf it were to be held that the
power of a Designated Court to grant bail was relatable to
Section 439 it would imply that not only the High Court but
D also the Court of Session would be entitled to grant bail on
such terms as they deem fit. The power to grant bail under
Section 439 is unfettered by any conditions and limitations
like Section 437. It would run counter to the express pro-
hibition contained in Section 20(8) of the Act .which enjoins
that notwithstanding anything in the Code, no person >---
E accused of an offence punishable under the Act or any rule
made thereunder shall, if in custody, be released on bail
unless the conditions set forth in clauses (a) and (b) are
satisfied."
(emphasis supplied)
..
F The High Court in the impugned judgment, however, referred to
Usmanbhai's case and held that the limitations placed under Section 37
of the NDPS Act are exactly similar to the ones in sub-section (8) and
(9) of Section 20 of the TADA Act and they are applicable only to
special courts. But we may point out that in paragraph 16 in
Usmanbhai's case it is observed:
G
"As a murder of construction, we must accept the conten-
tion advanced by learned counsel appearing for the State
Government that the Act being a special Act must prevail
in- respect of the jurisdiction and power of the High Court
to entertain an application for bail under Section 439 of the
H. Code or by recourse to its inherent powers under Section
482."
BUREAU v. KISHAN LAL [REDDY, J.) 151

However, as already mentioned, the learned Judges held that the view A
expressed in Balchand Jain's case is not applicable to the facts in
Usmanbhai's case and the same is clear from the observations made in
Usmanbhai's case which read as under:

"Lastly both the decision in Balchand Jain and that in
Ishwar Chand turn on the scheme of the Defence and Inter- B
nal Security of India Act, 1971. They proceed on the well
recognised principle that an ouster of jurisdiction of the
ordinary courts is not to be readily inferred, except by
express provision or by necessary implication. It all
depends on the scheme of the particular Act as to whether

- the power of the High Court and the Court of Session to· C
grant bail under Sections 438 and 439 exists. We must
accordingly uphold the view expressed by the High Court
that it had no jurisdiction to entertain an application for
bail under Section 439 or under Section 482 of the Code."

From the above discussion it emerges that in Usmanbhai's case the D
Supreme Court did not express anything contrary to what has been
observed in Balchand Jain's case and on the other hand at more than
one place observed that such enactments should prevail over the
general enactment and the non-obstante clause must be given its due
--·< importance. For all the aforesaid reasons we hold that the powers of
E
' the High Court to grant bail under Section 439 are subject to the
limitations contained in the amended .Section 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. The point of law is ordered accordingly.

The two accused respondents in these two appeals have been on F
bail pursuant to the order of the High Court, for a Jong time. The
learned counsel appearing for the Narcotics Control Bureau, the
appellant herein, is also not pressing cancellation of the bail. There-
fore, we are not remitting the matters of the High Court for fresh
consideration. Pending the proceedings, they would continue to be on
bail. Subject to the above clarification of law, the appeals are disposed G
of.

R.P. Appeals disposed of.