GHANSHYAM PALAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN these two applica­tions for bail, common question of law relating to applicability of Section 37 of the Narcotic Drugs and Psychotropic Sub­stances Act, 1985 (61 of 1985) (hereinafter referred to as the "Act") arises and as such both the matters have been heard one after the other and the learned Standing Coun­sel has also been heard in both the cases. The appellant in Criminal Appeal No. 65 of 1996 who has been convicted under Section 20 (b) (i) of the Act and sentenced to undergo R.I. for two years and to pay a fine of Rs, 2.000/- in default, to undergo R.I. for six months more, has filed Misc. Case No. 94 of 1996 for being released on bail during the pendency of the appeal. The appellant in Criminal Appeal No. 80 of 1996 who has been convicted under Section 20 (b) (i) of the Act and sentenced to undergo R.I. for four years and to pay a fine of Rs. 5,000/- in default, to undergo R.I. for one year more has filed Misc. Case No. 109 of 1996 for being released on bail during the pendency of the appeal.

(2.) THE learned standing Counsel sub­mits that the requirements indicated in Section 37 of the Act have to be fulfilled before bail can be granted in appeal against an order of conviction. He has relied upon the Division Bench deletion of this Court reported in (1993) 6 OCR 250 Ajay Kumar Nayak v. State of Orissa. Mr. S.D. Das, learned Counsel ap­pearing for the appellant in Criminal Ap­peal No. 68 of 1996 submits that since the sentence is imprisonment for a period less than five years, the embargo on grant of bail as envisaged under Section 37 of the Act is not attracted. He has relied upon the decisions reported in 1992 Crl LJ 205 (Kar.); 1993 (1) EFR170 (Kznl) Shankar Krishnasa Habib and another v. State of Karnataka ; 1993 Cri LJ 94 (Kar); (1993 (1) EFR 511 (Kant.), AM Dharmasingh and others v. The State of Karnataka, by the State Public prosecutor); (1995) 1 OCR (MP), Giriraj v. State of M.P.; and 1994 (3) Crimes 671 (Pat.) ; (1995 (1) EFR 585 (Pat.) RB, Kamlesh Kumar and others v. State of Bihar. He has further submitted that the mandatory requirements of Sec­tions 42 and 50 of the Act having not been complied with it cannot be said that there is any prima facie case against the accused person. Mr. S.C. Sahu, learned Counsel ap­pearing on behalf of the appellant in Criminal Appeal No. 80/96 has adopted the same line of arguments and in addition has relied upon the decision reported in (1993) 6 OCR 714, Bijoy Kumar Raut v. State of Orissa.

(3.) THE decision of the Karnataka High Court in 1993 Crl LJ 94 : 1993 (1) EFR 511 (Kant), relates to question of grant of bail during trial. In that case it was held thus: