MOHD ASHRAF Vs. STATE

JUDGEMENT

(1.) HEARD . Whether the provisions of Section 167 of J&K Code of Criminal Procedure Svt. 1989 can be applied for considering the question of bail to an accused who is in custody of police for commission of offences under Narcotic Drugs and Psychotropic Act, 1985,(hereinafter referred to as the Act), on account of default of the investigating agency in presenting the charge sheet in the court? is the question arising for consideration in this revision petition.

(2.) NARCOTIC Drugs and Psychotropic Substances Act 1985, which is a Central Act and is applicable to the State of Jammu & Kashmir, also contains a special provision for regulating the grant of bail, regarding commission of offences under the Act. Section 37 of the Act reads as follows: -

(3.) FROM the bare perusal of section 37 it is manifest that the exercise of power to grant bail by the Special Judge is not only subject to the limitations prescribed by Sec.439 of Central Cr.P.C. but is also subject to the limitations prescribed by Sec.37 which opens with non -obstante clause. Under sec.37 of the Act bail to an accused, who is alleged to have committed an offence under section 19, 24 or 27A and also for offences involving commercial quantity cannot be granted unless the two conditions enumerated in the section are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application and second that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, bail cannot be granted. Since the limitation for grant of bail regarding satisfaction of the aforesaid two conditions is in addition to the limitations under the Code of Criminal Procedure, applicability of proviso to section 167(2) Cr.P.C. cannot be excluded.