ATIK ANSARI Vs. STATE OF NCT DELHI

JUDGEMENT

(1.) This is an application for interim bail. It is alleged that 2.5 kgs of heroin was recovered from the petitioner. The percentage content of diacetylmorphine has been found to be 44.31% which comes to about 800 gms. by actual content.

(2.) Mr. Pawan Sharma, who appears for the State, submitted that the principles applicable to the grant of regular bail under Section 37 of the NDPS Act would also be applicable even in the case of interim bail. He placed reliance on the decision of the Supreme Court in the case of Union of India v. Ram Samujh, VIII (1999) SLT 275=IV (1999) CCR 89 (SC)=1999 (9) SCC 429 and in particular he relied on paragraph 7 of the said judgment in which there is a remark that 'persons who are involved in narcotic drugs are instrumental in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable and it causes deleterious effects and a deadly impact on the society'. It is further observed that such persons are a hazard to the society 'even if they are released temporarily'. Mr. Sharma points out that the Supreme Court, while making that observation, made it clear that whether the question is of regular bail or temporary bail, the considerations are the same because of the seriousness of the offence.

(3.) The learned Counsel for the petitioner, however, argued that the Supreme Court in Dadu @ Tulsidas, etc. v. State of Maharashtra, etc., VII (2000) SLT 379=IV (2000) CCR 125 (SC)=(2000) 8 SCC 437, while considering the provisions of Section 32A of the NDPS Act which relates to parole post-sentencing, concluded that the said provision was unconstitutional because it limited the right of the Court to grant parole. He submits that the question of grant of bail stands on a much lower footing than the question of parole because bail pertains to a period prior to conviction and parole pertains to a period after conviction. He pointed out that the Supreme Court was of the view that even if a person has been convicted under the NDPS Act, the Court has the power to release the person on parole for good reasons. Therefore, there is no reason as to why a similar power is not read into Section 37 of the NDPS Act. He then referred to a decision of a Division Bench of this Court in HoriLal v. State, 65 (1997) DLT 78 (DB)=1997 Cr. LJ 821.