OMANA Vs. STATE OF KERALA

JUDGEMENT

(1.) A widowed mother of three little children sets up a case that she is entitled to the special consideration envisaged in the proviso to S. 437(1) of the Code of Criminal Procedure (for short 'the Code') in the matter of bail, although she is involved in an offence under S. 20(b)(i) of the Narcotic Drugs and Pshychotropic Substances Act, 1985 (for short 'the Act'). Smt. V. G. Sreedevi, who advanced the case of the said widow, relied on the decision of a learned single Judge of the Allahabad High Court in Prem Narain Sharma v. State of U.P., (1992) 2 Cur Cri R 2066) in which learned Judge has observed thus . "I am of the view that in spite of special provisions made under Section 37 NDPS Act, it provided further limitations in grant of bail and the exceptions provided in the first proviso to Section 437, Cr.P.C. are still applicable in such cases". Learned counsel also invited my attention to the following observations made by Mirihe, J. of the Karnataka High Court in Kamalabai v. State of Karnataka, 1992 Cri LJ 561 in support of her plea. "No doubt the offences under the Act (NDPS Act) are of serious menace to the society at large. But while considering the bail application, the court has to take into consideration the liberty of the individual, interest of the State, interest of the society at large".

(2.) Learned additional Public Prosecutor contended that the view adumbrated in the above decisions cannot be accepted as correct, since the Parliament, through S. 37 of the Act, conveyed a totally different message. No doubt, a Full Bench of this Court has held in Berlin Joseph v. State of Kerala (1992) 1 Ker LT 514 that S. 37 of the Act does not override S. 167(2) of the Code. The said observation was made with due emphasis to clause (c) of S. 36A(1) of the Act. The application of S.167(2) of the Code is a different matter and at a different stage. The said principle cannot be applied during consideration of S. 37 of the Act which reads thus :

(3.) It is significant that the non-obstante clause in the section is followed by words which contain absolute prohibition in granting bail except in contingencies specified in the sub-section, It means that the benefits provided in the Code shall stand at bay while considering the plea bail for a person involved in an offence mentioned in the section. Sub-section (2) makes the position further clear that "the limitations on granting of bail" specified in sub-section (1) are in addition to "the limitations" under the code. If sub-section (2) has been framed with the words "the benefits" instead of the word "limitations" the position would have been different and considerations enumerated in the provisos to S. 437 of the code could have been supplemented with any consideration which S. 37 of the Act would have contained.