PRASUN KUMAR DEB, J.

(1.) These two criminal miscellaneous applications have been referred to Division Bench for consideration. The questions that arise for consideration are as. to whether in spite of the limitation imposed under Section 37(l)(b) of the Narcotic Drugs and Psychotropic Substance Act, 1961 (hereinafter to be referred to as the said Act) with regard to grant of bail an accused who is booked under Section 20 of the Act is entitled to bail if the stringent measures and formalities incorporated in the Act for arrest and seizure is not literally complied.

(2.) It is now settled by the decision of the Supreme Court in Narcotics Control Bureau v. Kishan LaL, that provision of Section 37 of the said Act being in negative terms limiting the scope of applicability of the provision of the Code of Criminal Procedure regarding bail, the power of the High Court under Section 439, Cr. P. C. are circumscribed by Section 37 of the Act. The Supreme Court had no occasion to consider the question whether breach of various safeguard provided in the Act in the matter of arrest etc. will render the arrest non est entitling the detenu to bail. This aspect of the matter has been considered by several High Courts.

(3.) There are two petitioners in Crim. Misc. 5050/93R who were arrested by the Police in Dhanbad P.S. Case No. 536/93 under Section 20 of the Act. On 2.9.1993 at 3.20 a.m., Sub-Inspector of Bank More P.S. Jitendra Singh was on patrolling duty accompanied by armed force. He detected two persons in the vicinity of diamond crossing. They were moving in a suspicious manner towards Dhanbad Railway Station. The officer asked them to stop. The suspects ignored the warning and made attempt to escape but were nabbed with aid of constables after chase. The petitioners disclosed their names. From the possession of petitioner Anil Kumar Singh, 5 kgs. Ganja wrapped in a plastic bag was recovered. The second petitioner, Arbind Singh, is the brother of Anil Kumar Singh. The ganja was seized in presence of two witnesses.

(4.) The petitioners in Cri. Misc. 5050/93R then moved bail petitions before the Sessions Judge, Dhanbad, but the same was rejected. In Cri. Misc. No. 4304/93R the two petitioners, namely, Kamlesh Kumar and Rakesh Kumar, are accused in Gorhar P.S. Case No. 19 of 1993 dated 4.8.1993 under Section 20 of the Act. On 4.8.1993, the officer-in-charge of Gorhar Police Station, MithileshKumar Singh, when case back to the police station from patrolling duty. He came to know from confidential information that Gonia was being carried in a bus bearing registration No. BR-2-P-5424 and the said bus is coming from Bihar Shariff. He made a station diary entry No. 48 dated 4.8.1993 and then with the other police officers went to Kaltharia Ghati. At about 4.15 a.m. a bus came from the side of Barbhatta and the same bore registration No. 21-P-5424. In wind of search of the said bus after observing due formalities of law in presence of independent witnesses, he claims to have recovered from the cabin of the bus one brief case of light green sky colour which was an old and in that he found three kilograms of Gonia covered with paper. According to him, the said brief case belonged to Kamlesh Kumar. He also recovered one white coloured plastic bag and the same also contained three kilograms of Gonia and according to the prosecution the same belonged to Rakesh Kumar. Accordingly he prepared seizure list in presence of the witnesses, and since the petitioners could not give any explanation or show any licence for keeping the same hence he is alleged to have arrested them and a first information report was drawn up and investigation was entrusted to the Assistant Sub-Inspector of Police. In this case also the petitioners moved for bail before the Sessions Judge, (Special Judge) Hazaribagh, who rejected the bail application of the petitioners on 4.9.1993.

(5.) Section 20 of the Act provides punishment for contravention in relation to cannabis plant and cannabis, provides. It reads as follows: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder: (a) cultivates any cannabis plant, or (b) the produces, manufactures, possesses, sells, purchases, transports imports inter-State, exports inter-state or uses cannabis, shall be punishable - (i) Where such contravention relates to Gonia or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii) Where such contravention relates to cannabis other than Gonia, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

(6.) Sri Bajaj appearing for the petitioners has submitted that there has been violation of the provisions of Sections 42, 43, 53 and 55 of the Act. The informant is not authorised under Section 42 of the Act to search and seize, hence the arrest all seizure are illegal and without jurisdiction, the provision contained in Sections 42 to 55 have been made so as to ensure fair investigation, since the Act provides for stringent punishment and denial of bail irrespective of considerations of age, sex or disability.

(7.) The first infirmity to be noticed is that the seizure substance was not sealed as laid down in Section 55 of the Act nor there is any report of chemical analyst that the substance seized from the possession of the petitioner was Gonia. Therefore statement and suspicion of the police officer is not enough to hold that the substance seized is Gonia. There has been gross laxity on the part of the police officer in not obtaining report from chemical analyst. 5. 37 of the Act, which is the crucial provision, reads as follows: Offences to be cognizable and non-bailable. -(1) Notwithstanding anything contained in the Cr. P.C., 1973 (2 of 1974) (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 (ii) where the Public Prosecutor opposed the application, the Court is satisfied that there are reasonable grounds for believing that 4e is not guilty of such offence and that he is not likely to commit any 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.T 5. 42 of the Act lays down as follows: Power of entry, search, seizure and arrest without warrant or authorisation. -(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substances; Provided that if such officer has reason to belief that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer taken down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Section 43 provides as follows: Power to seizure and arrest in public places. - Any officer of any of the departments mentioned in Section 42 may (a) seize, in any public place or in transit, any narcotic drugs. or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and along with such drug or substance any animal or conveyance or arti : of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable in under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purpose of this sanction, the expression public place includes any building, conveyance, hotel, shop or other place intended for use by, or accessible to the public. Section 52 reads as follows: Disposal of persons arrested and articles seized: (1) Any officer arresting a person under Section 41, Section 42, 43 or Section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of Section 41, Section 42, Section 43 or Section 44 shall be forwarded without unnecessary delay to- (a) the officer-ill-charge of the nearest police station; or (b) the officer empower under Section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch take such measures as may be necessary for the disposal according to law of such person or article.T Section 55 reads as follows: Police to take charge of articles seized and delivered. -An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the order of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him and shall allow any officer who may accompany such articles to the police station or who be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.T There has been non -compliance of Section 55 of the Act which is mandatory. In 1992 Cr. L.J. 23422 the Rajasthan High Court rejected the evidence of recovery of Charas kept in a bag because the bags were not sealed immediately after seizure by the recovery officer.

(8.) The Bombay High Court in Lawrance DSouza v. State of Maharashtra, held that noncompliance with procedural requirement can be looked even at the stage of bail. It would be fallacious and pernicious to leave the question of these compliance to be looked into only at the stage of trial. That would bring into peril the liberty of the citizen guaranteed under Article 21 of the Constitution of India Such a situation is fraught with the danger of the prosecution agency ignoring altogether the compliance of the provision which contain in-built safeguards to accused with TI In 1989 Cr. L.J. 2438 (Delhi)4, the accused from whom Charas was recovered was not produced before the officer-in-charge immediately with seized material. Sampling and sealing was not done under the supervision of the Officer-incharge. It was held that trial was vitiated due to noncompliance of Sections 52(3) and 55.

(9.) These applications can be disposed of on a very short ground. The limitation on the power to grant bail imposed by Section 37(1)(b) is applicable only if offence is punishable for a term of imprisonment of five years or more under the Act. An offence under Section 20(b)(i) is punishable for a period which may extend to five years. An offence under Section 20(b)(ii) is punishable for a term which shall not be less than 10 years but which may extend to 20 years. Thus under Section 20(b)(i) the sentence can be less than five years. Hence in our opinion the bar under Section 37(1) (b)will not operate. It will operate only if the minimum sentence is five years.

(10.) The Karnataka High Court in A. V. Dharmsingh v. The State of Karnataka, interpreting the expression punishable for a term of imprisonment for five years or more means the offence should be punishable for minimum 5 years or more because the words or more are added only to emphasise offence punishable for five years or more are to be offence for which provision of Section 37 of the Act is made. Therefore, the expression means that the offence must be punishable with imprisonment which shall not be less than 5 years but it can be more. The decision of the Supreme Court in A.I.R. 1991 S.C. 558 was distinguished on the ground that the Supreme Court has not considered this aspect of Section 37. The learned Judge of the Karnataka High Court following F.I.R. 1991 Karn. 1820, held non-compliance with mandatory provisions regarding search and seizure under Sections 42 to 50 of the Act will amount to prejudice against the accused and on that ground the accused will be entitled to bail.

(11.) The Madras High Court in Sundarsan v. State, dissented with the view of the Karnataka High Court. According to Madras High Court view offence under Section 20(b)(i) comes within the purview of the Act.

(12.) We respectfully agree with the Karnataka High Court view and differ with the view of Madras High Court. If two possible and reasonable interpretation can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than which imposes penalty. It is not competent for the court to stretch the meaning of an expression used by Legislature in order to carry out the intention of the Legislature: Tolaram v. State of Bombay.

(13.) In Cri. Misc. Case No. 4304 of 1993 (R), the materials regarding alleged recovery of Ganja from the conscious possession of the petitioner is doubtful and the Sessions Judge has noticed the discrepancy in evidence in his bail order. The Ganja was recovered from a brief case found in the cabin of bus. One of the petitioner is said to be sitting on the roof and it is not clear which of the petitioners was found in the cabin. The Ganja has not been examined by any expert.

(14.) In Crl. Misc. No. 5050/93R alleged recovery was made from the possession of only one petitioner. It is not established that the substance seized Ganja.

(15.) For the reasons stated above, both the applications are allowed. The petitioners are directed to be released on bail on furnishing security of Rs. 10,000 each with two sureties of the like amount to the satisfaction of the Sessions Judge of respective places. The petitioners shall appear before the concerned Sessions Court once in a month until further orders of the Sessions Judge. Both Applications allowed.