SOSAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS bail application has been referred to the Division Bench as the vires of Section 37 (1) (b) of the Narcotic Drugs & Psychotropic Substances Act,1985 (hereinafter referred to as the Act) has been challenged.

(2.) SUCCINCTLY stated, the relevant facts are that on receiving a telephonic information, the Dy. S. P. , Shahpura District-Bhilwara made a search on the person of Smt. Sosar and it is alleged that from her possession 2. 6 kg. of opium was recovered in four packets concealed inside her petticoat (Ghaghra) and for the possession/ transportation thereof she had no licence. Accordingly she was arrested for the offence punishable under section 8/18 of the Act. The learned Special Judge, N. D. P. S. Act Cases, Bhilwara by his order dated 7. 10. 93 has rejected her bail application.

(3.) A bare reading of Section 37 of the Act reveals that it starts with a non-obstante clause stating that notwithstanding any thing contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. This section declares every offence punishable under the Act to be cognizable. The N. D. P. S. Act is a special enactment and it has been enacted with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. That being the under-lying object and more so when the provisions of section 37 of the Act are in negative terms limiting the scope of applicability of the provisions of Cr. P. C. regarding bail, in our considered opinion, it can not be held that the High Court's power to grant bail under section 439 Cr. P. C. are not subject to the limitation mentioned under section 37 of the Act. The non-obstante clause with which the section start should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between ss. 437 &439 & s. 37 of the Act, the provisions of section 37 shall prevail.