Holding

The proviso to sub‑section (2) of Section 167 of the Code of Criminal Procedure applies to offences under the NDPS Act and is not excluded by Section 37 of the NDPS Act.

Summary

The Narcotics Control Bureau seized a consignment of hashish and arrested three persons under the NDPS Act. The complaint was not filed within the 90‑day period prescribed in the proviso to Section 167(2) of the CrPC, and the accused claimed an automatic right to bail. The High Court allowed the bail, holding that the NDPS Act excluded the proviso. On appeal, the Supreme Court examined whether the NDPS Act, particularly Section 37, is inconsistent with the proviso to Section 167(2) and thus bars its operation. The Court held that the proviso to Section 167(2) applies to NDPS offences; Section 37 imposes additional conditions only when bail is considered on merits and does not negate the automatic release provision. Consequently, the appeals were dismissed and the interim bail orders vacated.

Issues considered

Whether the proviso to sub‑section (2) of Section 167 of the Code of Criminal Procedure can be invoked by an accused of an offence under the NDPS Act to claim release on bail when the complaint is not filed within the prescribed 90‑day period.
Whether Section 37 of the NDPS Act, with its non‑bailable provisions, is inconsistent with and therefore excludes the operation of the proviso to Section 167(2) of the CrPC.
Whether the special provisions of the NDPS Act, particularly Sections 36‑A and 36‑C, modify the application of the CrPC provisions relating to bail and remand.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 437, s. 439
Narcotic Drugs and Psychotropic Substances Act, 1985s. 36, s. 36-A, s. 36-C, s. 37, s. 51
Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20

Subjects

bailNDPS ActSection 167 CrPCnon‑bailable offencespecial courtsremandinvestigation periodSection 37high court powerscriminal procedure

Judgment

UNION OF INDIA A
v.
THAMISHARASI AND ORS.

MAY 1, 1995

[J.S. VERMA AND MRS. SUJATA V. MANOHAR, JJ.) B

Narcotic Drugs and Psychotropic Substances Act, 1985-Section
37-Bail-Default in filing complaint within period of 90 days-Claim to be
' released on bail-Applicability of proviso to sub-section (2) of Section 167 of
Code of Criminal Procedure. C

Criminal Procedure Code, 197rSection 167(2), Proviso-Ap-
plicability of-Bail-Commission of offence under Narcotic Drugs and
Psychotropic Substances Acf:--Default in filing complaint within period of 90
days-Claiming to be released on bail-Applicability of proviso to sub-sec. D
(2) of Sec. 167.

The Narcotics Control Bureau on the basis of au information seized
a consignment of Oasks. exported from Madras to Israel containing
Hashish concealed therein. The premises of the accused were searched at
Madras and their statements recorded by the concerned authorities. These E
accused were arrested on 27-6-1994. The complaint against the accused was
not filed within the maximum period of 90 days of the arrest specified in
the proviso to sub-section (2) of Section 167 Cr.P.C. as the total period for
which the accused can be remanded to custody during investigation. The
accused claimed to be released on bail as of right on expiry of the specified F
period of 90 days and they had been directed to be released on bail on that
ground alone. The High Court rejected the prayer for cancellation of the
bail holding that the proviso to sub-section (2) 167 Cr.P.C. can be invoked
by an accused arrested for commission of an offence under the Narcotic
Drugs and Psychotropic Substances Act, 1985, in default of not filing the
complaint within that period. Hence these appeals by sptcial leave. G
It was submitted on behalf of the Union of India that by virtue of the
special provisions in the N.D.P.S. Act and particularly Sections 36 and 37
thereof, the application of the proviso to sub-section (2) of Section 167
Cr.P.C. was excluded in the case of a person accused of any olTepce H
905
906 SUPREME COURT REPORTS (1995] 3 S.C.R.

A punishable under the N.D.P.S. Act.

The respondents contended that the scheme of the N.D.P.S. Act
'
supported the applicability of the proviso to sub-section (2) of Section 167
CrPC instead of indicating its exclusion in such cases.

B The question raised for consideration was whether the proviso to sub
section (2) of Section 167 of the Code of Criminal Procedure, 1973 can be
invoked by an accnsed arrested for commission of an offence under the
N.D.P.S. Act, 1985, to claim release on bail on the expiry of the total period
specified therein if the complaint is not filed within that period.
c
Dismissing these appeals, this Court

HELD: 1.1. The limitation on granting of bail specified in clause (b)
of sub-section (1) of Section 37 of the Narcotic Drugs and Psychotropic
D Substances Act, 1985 come in only when the question of granting bail arises
on merits. 1ly its very nature the provision is not attracted when the grant
of bail is automatic on account of the defanlt in filing the complaint within
the maximnm period of custody permitted dnring investigation by virtue
of sub-section (2) of Section 167 of the Criminal Procedure Code. The only
fact material to attract the proviso to sob-section (2) of Section 167 is the
E .default In filing the complaint within the maximnm period specified there-
in to permit custody during investigation and not the merits of the case
. which till the filing of the complaint are not before the conrt to determine
the existence of reasonable grounds for forming the belief about the guilt
of the accused [914-G, H, 915-A]
F
1.2. Sub-section (3) of Section 36-A provides that the special powers
of the High Court regarding bail under section 439 of the Code of Criminal
Procedure shall not be affected by anything contained in section 36-A or
the N.D.PS. Act, Sub- section (2) of Section 167 Cr.P.C. has been expressly
applied by Section 36-A of the Act and the scheme or the Act Is that
G provisions of the Code would apply except where there is any inconsistent
provision in this Act in relation to arrests made under this Act. It is this
context in which Section 37(1)(B) has to be construed wherein are specified
the limitations on granting of bail. The corresponding provision in the
Code of Criminal Procedure is Section 437 and not Section 167 which can
H be treated to be inconsistent. [915-C, DJ
- "\
U.0.l. v. 1HAMISHARASI 907

1.3. Tue limitation on the power to release on.bail in· Section 437 Cr. A
P.C. is in the nature of a restriction on that power if reasonable grounds
exist for the belief that the accused is guilty. The limitation on this power
in Section 37 of the N.D.P.S. Act is in the nature of a condition precedent
for the exercise of that power, so that, the accused shall not be released on
bail unless the court is satisfied that there are reasonable grounds to B
believe that he is not guilty. Under .Section 437 Cr. P.C., it is for the
prosecution to show the existence of reasonable gtonnds to snpport the

, belief in the guilt of the accused to attract the restriction on the power to
grant bail; but under Section 37 N.D.P.S. Act, it is the accused who must
show the existence of grounds for the belief that be is not guilty, to satisfy C
the condition precedent and lift the embargo on the power to grant bail.
Provision in Section 37 to the extent it is inconsistent with Section 437 of
the Code of Criminal Procedure supersedes the corresponding provisions
in the Code and imposes limitations on granting of the bail in addition to
the limitations under the Code of Criminal Procedure as expressly
provided in Sub-section (2) of Section 37. These limitations on granting of D
~ ,. bail specified in sub-sertion (1) of Section 37 are in addition to the
limitations under Section 437 of the Code of Criminal Procedure and were
enacted only for this purpose; and they do not have the effect of excluding
the applicability of the proviso to sub-section (2) of Se<tion 167 Cr. P.C.
which operates in a different field relating to the total period of custody E
of the accused permissible during Investigation. In order to exclude the
application of the proviso to sub-section (2) of Section 167 Cr.P.C. in such
cases an express provision indicating the contrary intention was required
or at least some provision from which such conclusion emerged by neces-
) sary Implication. There is no such provision In the N.D.P.S. Act and the F
&heme of the Act indicates that the total period of custody of the accused
permissible during investigation Is to be found in Section 167 Cr. P.C.
which is expressly applied. The absence of any provision inconsistent
therewith in this Act is signiflcant. (916-C to G, H, 917-A]

G
Natabar Parida Bisnu Charan Parida Batakrushna Parida Balaji
.,.... ~ Parida v. State of Orissa, [1975] Supp. SCR 137, relied on.
·'

Narcotics Control Bureau v. Kishan Lal Gupta, (1991] 1 SCC 705,
distinguished. H
t
908 SUPREME COURT REPORTS [1995] 3 S.C.R. ....
A CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 611-612 of 1995 Etc.

From the Judgment and Order dated 14.12.94 of the Madras High
Court in H.C.P. No. 1675 & 1692 of 1991.

B K.T.S. Tulsi Additional Solicitor General, V.J. Francis and V.K.
Verma for the Appellant.

Ram Jethmalani, B. Kumar and K.K. Mani for the Respondents.

The Judgment of the Court was delivered by
c J. S. VERMA, J. Leave granted in special leave petitions.

The common question of law for decision is : whether the proviso to
sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 can
be invoked by an accused arrested for commission of an offence under the
D Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as "the N.D.P.S. Act".) to claim release on bail on the expiry of
the total period specified therein if the complaint is not filed within that
period? The Madras High Court has answered this question in the affirm-
ative and directed the release on bail of the respondents who were arrested
E for the commission of offences under the N.D.P.S. Act in default of filing
the complaint within that period. Hence these appeals by special leave.

The material facts are only a few. Admittedly, the Narcotics Control
Bureau got a tip-off that a consignment of flasks exported from Madras to
Israel contained Hashish concealed therein; and pursuant to this tip-of the
p consignment was seized at Israel on 8.6.1994. On the basil: of information,
the premises of the accused Armukham, Nagraj and Arif U. Patel were
searched at Madras and their statements recorded by the concerned
authorities. These accused were arrested on 27.6.1994 and produced before
the Magistrate who granted remand from time to time. We need not
mention the facts relating to the orders of preventive detention of the
G accused under the Prevention of Illicit Traffic in Narcotic Drugs &
Psychotropic Substances Act, 1988 since that is the subject matter of a
different proceeding wherein the order of preventive detention was chal-
lenged. Admittedly, the complaint against the accused was not fded within
the maximum period of 90 days of the arrest specified in the proviso to
H sub-section (2) of Section 167 Cr. P.C. as the tota\ period for which the
U.0.1. v. THAMISHARASI [J.S. VERMA, J.] 909
•
accused can be remanded to custody during investigation. Accordingly , A
' the accused claimed to be released on bail as of right on expiry of the
specified period of 90 days and they have been directed to be released on
bail on that ground alone. The High Court has rejected the prayer for
cancellation of the bail by the impugned order. Hence, these appeals which
involved for decision the aforesaid common question of law.
B
It may be mentioned that in the meantime, after the aforesaid
prescribed period, the complaint has been filed but this subsequent fact is
not material for decision of the above question of law. It is common ground
that the legality of the impugned order granting bail is to be decided with
reference to its date prior to the filing of the complaint. The power to c
detain the accused on the basis of the material now available on merits or
the liability of the accused for preventive detention is a separate question
which does not arise for consideration herein, and would remain unaffected
by the view taken in these appeals on the sole question for decision.

The submission of the learned Additional Solicitor General is that D
by virtue of the special provisions in the N.D.P.S. Act and particularly
Sections 36 and 37 thereof, the application of the proviso to sub-section
(2) of Section 167 Cr. P.C. is excluded in the case of a person accused of
any offence punishable under the N.D.P.S. Act. On the other hand, Shri
Ram Jethmalani, learned counsel for the respondents contends that the E
scheme of the N.D.P.S.Act supports the applicability of the proviso to snb-
section (2) of Section 167 Cr. P.c. instead of indicating its exclusion in such
cases.

The relevant provisions in the Code of Criminal Procedure, 1973 are
as under: F
"4. Trial of offence under the Indian Penal Code and other laws.
- (1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried, and otherwise deal with ac-
cording to the provisions hereinafter contained.
G
(2) All offences under any other law shall be investigated,
._ f
, inquired into, tried and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force
regnlating the manner trying or otherwise dealing with such offen-
ces. 11 H
910 SUPREME COURT REPORTS [1995] 3 S.C.R.
•
A "167. Procedure when investigation cannot be completed in
twenty-four hours. - (1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fIXed by
Section 57, and there are grounds for believing that the accusation
or information is well-founded, the officer in charge of the police
B station or the police officer making the investigation, if he is not
below the rank of sub- inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the same
time forward the accused to such Magistrate.
c
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and if he has no jurisdiction
D to try the case or commit it for trial, and considers further deten-
tion nnnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisc!iction.
TI
Provided that -
E
(a) the Magistrate may authorities the detention of the ac-
cused person, otherwise than in the cnstody of the police,
beyond the period of fifteen !lays if he is satisfied that
adequate gronnds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in
F custody nnder this paragraph for a total period exceed-
ing,-

(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprison-
ment for a term of not less than ten years;
G
(ii) sixty days, were the investigation relates to any other
offence,

and, on the expiry of the said period of ninety days, or sixty days,
H as the case may be, the accused person shall be released on bail
U.0.1. v. TIIAMISHARASI (J.S. VERMA, J.) 911

of he is prepared to and does furnish bail, and every person A
released on bail under this sub-section shall be deemed to be so
released under the provisions of chapter XXXIII for the purpose
of that chapter :

(b) ............ ..
B
(c) ............ ..

Explanation L - For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period specified
in paragraph (a), the accused shall be detained in custody so long C
as he does not furnish bail.

xxx xxx xxx

The relevant provisions in the Narcotic Drugs and Psychotropic
Substances Act, 1985 are as under : D

"36-A. Offences triable by Special Courts. - (1) Notwithstanding

J
anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), -

(a) all offences under this Act shall be triable only by the E
Special Court constituted for the area in which the offence
has been committed or where there are more Special
Courts than one for such area, by such one of them as
may be specified in this behalf by the Government.
F
(b) where a person accused of or suspected of the commission
of an offence under this Act is forwarded to a Magistrate
under sub-section (2) or sub-section (2-A) of Section 167
of the Code of Criminal Procedure, 1973 (2 of 1974), such
Magistrate may authorise the detention of such person in G
such custody as he thinks fit for a period not exceeding
fifteen days in the whole where such Magistrate .is a
Judicial Magistrate and seven days in the whole where
such Magistrate is an Executive Magistrate :

Provided that where such Magistrate considers -· H
912 SUPREME COURT REPORTS [1995] 3 S.C.R.

A (i) when such person is forwarded to him as
aforesaid; or

(ii) upon or at any time before the expiry of the period
of detention authorised by him,

B that the detention of such person is unnecessary, he shall
order such person to be forwarded to the Special Court
having jurisdiction ;

(c) the Special Court may exercise, in relation to the person
forwarded to it under clause (b ), the same power which
c a Magistrate having jurisdiction to try a case may exercise
under Section 167 of the Code of Criminal Procedure,
1973 (2 of 1974), in relation to an accused person in such
case who has been forwarded to him under the section;

D = = =
(3) Nothing contained in this section shall be deemed to affect
that special powers of the High Court regarding bail under Section
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
E
"Magistrate" in that section included also a reference to a "Special
Court" constituted under Section 36".

"36-C. Application of Code to proceedings before a Special
Court. - Save as otherwise provided in this Act, the provisions of
the Code of Criminal Procedure, 1973 (2 of 1974), (including the
F
provisions as to bail and bonds) shall apply to the proceedings
before a Special Court and for the purposes of the said provisions,
the Special Court shall be deemed to be a Court of Session and
the person conducting a prosecution before a Special Court shall
be deemed to be a Public Prosecutor."
G
37. Offence to be cognizable and nonbailable - (1) Not-
withstanding anything contained in the Code of Criminal Proce-
dure, 1973 (2 of 1974). \ '

(a) every offence punishable under this Act shall be cog-
H nizable;
U.0.1. v. TIIAMISHARASI [J.S. VERMA, J.] 913

(b) no person accused of an offence punishable for a term of A
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
B
(ii) where the Public Prosecutor oppose 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.

xxx xxx xxx"
c
"51. Provisions of the Code of Criminal Procedure, 1973 to
apply to warrants, arrests, searches an~ seizures. - The provisions
of the Code of Criminal Procedure 1973 (2 of 1974) shall apply,
in so far as they are not inconsistent with the provisions of this D
Act, to all warrants issued and arrests, searches and seizures made
under this Act. 11

Section 36-A makes it clear that a person accused of or suspected of
the commission of an offence under the N.D.P.S. Act is to be forwarded
to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 E
Cr. P.C.; and the Special Court constituted under Section 36 of the Act
exercises, in relation to the person so forward to it, the same power which
a Magistrate having jurisdiction may exercise under Section 167 Cr. P.C.
in relation to an accused person forwarded to him under that Section. The
clear reference to the power of the Magistrate under Section 167 Cr. P.C., F
particularly sub-section (2) thereof, is an indication that no part of sub-sec-
tion (2) of Section 167 of the Code is inapplicable in such a case unless
there be any specific .provision to the contrary in the N.D.P.S. Act. This
conclusion is reinforced by some other provisions of the N.D.P.S. Act,
Section 36-C says that "save as otherwise provided in this Act, the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including G
the provisions as to bail and bonds) shall apply to the proceedings before
a Special Court." This also indicates that the provisions in the Code of
Criminal Procedure relating to bail and bonds are applicable to the
' proceedings before a Special Court under the N.D.P.S. Act "save as
otherwise provided in this Act." Section 51 also says that the provisions of H
914 SUPREME COURT REPORTS (1995] 3 S.C.R.

A the Code of Criminal Procedure, 1973 shall apply, in so far as they are not
inconsistent with the provisions of this Act, to all warrants issued and
arrests, searches and seizures made under this Act. Except for Section 37
of the N.D.P.S. Act, no other provision of the N.D.P.S. Act is relied on to
contend that there is any inconsistent provisions in the N.D.P.S. Act to
exclude the applicability merely of the proviso to sub-section (2) of Section
B 167 Cr.P.C. when sub-section (2) of Section 167 of the Code is made
expressly applicable by Section 36-A of the N.D.P.S. Act.

The question, therefore, is: Whether Section 37 of the N.D.P.S. Act
is an inconsistent provision of this kind to exclude the applicability merely
C of the proviso to sub-section (2) of Section 167 Cr.P.C. when sub-section
(2) of Section 167 is expressly made applicable by the N.D.P.S. Act? The
non-obstante clause at the beginning of sub-section (1) of Section 37
indicates that the provisionsin clauses (a) and (b) thereof are inconsistent
with the corresponding provisions of the Code. Clause (a) makes every
D offence punishable under this Act to be cognizable. Clause (b) imposes
limitations on granting of bail specified therein which are in addition to the
limitations under the Code of Criminal Procedure on granting of bail as
stated in sub-section (2) of Section 37. Clause (b) of sub-section (1)
specifies the two limitations on granting of bail. namely, (1) an opportunity
to the Public Prosecutor to oppose the bail application, and (2) satisfaction
E of the court that there are reasonable grounds for believing that the
accused is not guilty of such offence and that he is not likely to commit any
offence while on bail. The learned Additional Solicitor General contends
that these limitations on granting of bail specified in clause (b) of sub-sec-
tion (1) of Section 37 indicate that the applicability of the proviso to sub-
section (2) of Section 167 Cr.P.C. is excluded in such cases. We are unable
F
to accept this contention.

The limitatio11s on granting of bail specified in clause (b) of sub-sec-
tion (1) of Section 37 come in only when the question of granting bail arises
on merits. By its very nature the provision is not attracted when the grant
G of bail is automatic on account of the default in filing the complaint within
the maxinrnm period of custody permitted during investigation by virtue of
sub-section (2) of Section 167 CR. P.C. The only fact material to attract
the proviso to sub-section (2) of Section 167 is the default in filing the
complaint within the maximum period specified therein to permit custody
H during investigation and not the merits of the case which till the filing of
U.0.1.v. TilAMISHARASI (J.S.VERMA,J.] 915

the complaint are not before the court to determine the existence of A
reasonable grounds for forming the belief about the guilt of the accused.
The learned Additional Solicitor General submitted that this belief can be
formed during investigation by reference to the contents of the case diary
even before the chargesheet has been filed. This is fallacious. Till the
complaint is filed the accused is supplied no material from which he can B
discharge the burden placed on him by Section 37(1)(b) of the N.D.P.S.
Act. In our opinion, such a construction of clause (b) of sub-section (1) cif
Section 37 is not permissible.

Sub-section (3) of Section 36-A provides that the special powers of.
the High Court regarding bail under Section 439 of the Code of Criminal C
Procedure shall not be affected by anything contained in Section 36-A of
the N.D.P.S. Act. Sub-section (2) of Section 167 Cr. P.C. has been expressly
applied by Section 36-A of the Act and the scheme of the Act is that the
provisions of the Code would apply except where there is any inconsistent
provision in this Act in relation to arrests made under this Act. It is this D
context in which Section 37(1)(b) has to be construed wherein are specified
the limitations on granting of bail. We must, therefore, look to the cor-
responding provision in the Code of Criminal Procedure with which Sec-
tion 37(1) (b) of the Act can be treated to be inconsistent. In the Code of
Criminal Procedure, it is Section 437 and not Section 167 which is the
corresponding provision for this purpose. The corresponding limitation on E
grant of bail in case of non-bailable offence under Section 437 is as follows:

"(i) such person shall not be so re-leased if there appear
reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life;" F

In other words, under Section 437 of the Code the person is not to be
released on bail "if there appear reasonable grounds for. believing that he
has been guilty of an offence ....... " while according to Section 37 of the
N.D.P.S. Act, the accused shall not be released on bail unless "the court is
satisfied that there are reasonable grounds for believing that he is not guilty G
of such offence ..... ,.". The requirement of reasonable grounds for belief. in
the guilt of the accused to refuse bail is more stringent and, therefore, more
beneficial to the accused than the requirement of reasonable grounds for
the belief that he is not guilty of the offence under Section 37 of the
N.D.P.S. Act. Under Section 437 Cr. P.C., the burden is on the prosecution H
916 SUPREME COURT REPORTS [1995) 3 S.C.R.

A to show the existence of reasonable grounds for believing that the accused
is guilty while under section 37 of the Act the burden is on the accused to
show the existence of reasonable grounds for the belief that he is not guilty
of the offence. In the first case, the presumption of innocence in favour of
the accused is displaced only on the prosecution showing the existence of
B reasonable grounds to believe that the accused is guilty while under the
N.D.P.S. Act it is the accused who has to show that there are reasonable
grounds for believing that he is not guilty.

The.limitation on the power to release on bail in Section 437 Cr. P.C.
is in the nature of a restriction on that power, if reasonable grounds exist
C for the belief that the accused is guilty. On the other hand, the limitation
on this power in Section 37 of the N.D.P.S. Act is in the nature of a
condition precedent for the exercise of that power, so that, the accused
shall not be released on bail unless the Court is satisfied that there are
reasonable grounds to believe that he is not guilty. Under Section 437 Cr.
P.C., it is for the prosecution to show the existence of reasonable grounds
D to support the belief in the guilt of the accused to attract the restriction on
the power to grant bail; but under Section 37 N.D.P.S. Act, it is the accused
who must show the existence of grounds for the belief that he is not guilty,
to satisfy the condition precedent and lift the embargo on the power to
grant bail. This appears to be the distinction between the two provisions
E which makes Section 37 of the N.D.P.S. Act more stringent.

Accordingly, provision in Section 37 to the extent it is inconsistent
with Section 437 of the Code of Criminal Procedure supersedes the cor-
responding provisions in the Code and imposes limitations on granting of
F bail in addition to the limitations under the Code of Criminal Procedure
as expressly provided in sub-section (2) of Section 37. These limitations on
granting of bail specified in sub-section (1) of Section 37 are in addition
to the limitations under Section 437 of the Code of Criminal Procedure
and were enacted only for this purpose; and they do not have the effect of
excluding the applicability of the proviso to sub-section (2) of Section 167
G Cr.P.C. which operates in a different field relating to the total period of
custody of the accused permissible during investigation.

In our opinion, in order to exclude the application of the proviso to
sub-section (2) of Section 167 Cr. P.C. in such cases an express provision
H indicating the contrary intention was required or at least some provision
t
U.0.1. v. TIIAMISHARASI [J.S. VERMA, J. J 917

from which such a conclusion emerged by necessary implication. As shown A
by us, there is no such provision in the N.D.P.S. Act and the scheme of the
Act indicates that the tot"1 period of custody of the accused permissible
during investigation is to be found in Section 167 Cr. P.C. which is expressly
applied. The absence of any provision inconsistent therewith in this Act is
significant.
B
A comparison with the relevant provisions of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") is
useful. Section 20 therein provides for modified application of certain
provisions of the Code of Criminal Procedure. Sub-section (4) of Section
20 specifies the modification with which Section 167 Cr. P.C. is applied, to C
a person accused of an offence under the TADA Act. One of the modifica-
tions expressly made .therein is by the provision for a longer total period
of permissible custody during investigation. A corresponding provision is
absent in the N.D.P.S. Act. Thereafter sub-sections (8) and (9) of Section
20 are provisions corresponding to sub-sections (1) and (2) of Section 37 D
of the N.D.P.S. Act. This similarity between the two Acts is striking and in
this context the absence in the N.D.P.S. Act of a provision like sub-section
(4) of Section 20 of TADA Act assumes further significance and supports
the construction we have made of Section 37 of the N.D.P.S. Act. The
TADA Act is a stringent statute to meet an extraordinary situation as in E
the N.D.P.S. Act. It is also significant that notwithstanding the substitution
of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989
subsequent to the enactment of the TADA Act, there is nothing in Section
37 of the N.D.P.S. Act similar to sub-sedion (4) of Section 20 of the TADA
Act even though there is striking similarity of the provision with sub-sec-
tions (8) and (9) of Section 20 of the TADA Act. In our opinion, the F
legislative intent of not excluding the applicability of the proviso to sub-
section (2) of Section 167 Cr.P.C. in cases of arrest made for commission
of offences under the N.D.P.S. Act, is quite evident.

It is settled that 'the court will have no power of remand of an G
accused to any custody unless the power is conferred by law'. (See Natabar
Parida Bisnu Charan Parida Batakrushna Parida Babaji Parida v. State of
Orissa, [1975] Supp. SCR 137). The power must, therefore, be traced to
some provision of the statute. There is clear mention of Section 167 Cr.
P.C. in the N.D.P.S. Act for the exercise of this power. Ordinarily, there H
918 SUPREME COURT REPORTS [1995] 3 S.C.R.

A must also be an outer limit prescribed by specification of the total period
of permissible remand during investigation. This too is provided in Section f
167. To exclude merely this part of Section 167, an express provision in the
statute was necessary, assuming there could be conferment of power of
remand unlimited in point of time which, in substance, is the argument of
B the learned Additional Solicitor General. The effect of the proviso to
sub-section (2) of Section 167 Cr.P.C. was stated in Natabar Parida (supra),
thus :-

"................... The law as engrafted in proviso (a) to sections
167(2) and section 309(2) of the New Code confers the powers of
c remand to jail custody during the pendency of the investigation
only under the former and not under the latter. Section 309(2) is
attracted only after cognizance of an offence has been taken or
commencement of trial has proceeded ....... But then the command
of the Legislature in proviso (a) is that the accused person has got
D to be released on bail if he is prepared to and does furnish bail
and cannot be kept in detention beyond the period of 60 days even
if the investigation may still be proceeding. In serious offences of
criminal conspiracy - murders, dacoities, robberies by inter-state
gangs or the like, it may not be possible for the police, in the
E circumstances as they do exist in the various parts of our country,
to complete the investigation within the period of 60 days. Yet the
intention of the Legislature seems to be to grant no discretion to the
court and to make it obligatory for it to release the accused on bail.
Of course, it has been provided in proviso (a) that the accused
released on bail under section 167 will be deemed to be so released
F under the provisions of Chapter XXXIII and for the purposes of
that Chapter. That may empower the court releasing him on bail,
if it considers necessary so to do, to direct that such person be
arrested and committed to custody as provided in sub-section (5)
of section 437 occurring in Chapter XXXIII. It is also clear that
G after the taking of the cognizance the power of remand is to be
exercised under section 309 of the New Code. But if it is not
possible to complete the investigation within a period of 60 days then
even in serious and !ffea::tly types of crimes the accused will be entitled
to be released on bail. Such a law may be a ''paradise for the
H criminals, " but surely it would not be so, as sometimes it is supposed
U.0.1. v. THAMISHARASI [J.S. VERMA, J.J 919

to be, because of the courts. It would be so under the command of A
the Legislature."

(at pages 142-143)

(emphasis supplied)
B
The learned Additional Solicitor General placed strong reliance on
the decision of this Court in Narcotics Control Bureau v. Kishan Lal and
Others, [1991] l S.C.C. 705. The only thing decided in that case is that the
power of the High Court to grant bail under Section 439 of the Code of
Criminal Procedure is subject to the limitations contained in the amended
Section 37 of the N.D.P.S. Act since those additional limitations are C
applicable to the High Court also in the matter of granting bail. That is a
different question. That decision does not, therefore, answer the question
which arises for consideration in the present case. No other decision of this
Court has been relied on by either side at the hearing before us to support
a different view.
D
For the aforesaid reasons, these appeals are dismissed resulting in
the interim orders made herein being vacated. However, it is made clear
that this decision will not affect any other order made in accordance with
law which may be in force permitting the. continuance in detention of the
respondents. E
R.A. Appeals dismissed.

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