SOSAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Bail Application has been referred to Use Division Bench as the vires of Section 37(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here in after referred to as the Act) has been challenged.

(2.) SUCCINETLY 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.) SHRI M.M. Singhvi has strenuously contended that the provisions of Section 37 of the Act can not over -ride the provisions of the proviso to Section 437(1), Cr.P.C, which specifically lays down that the court may direct, that the person referred in clause (i) or clause (ii) of the said Section be released on bail, if said person is under the age of sixteen years or is a woman or is sick or infirm. According to him the bar contained in Section 37 of the Act is in conflict with the provisions of Sections 437 and 439 of the Criminal Procedure Code and that the provisions of Section 37 of the Act are also discriminatory and violative of Articles 14 and 21 of the Constitution of India. More -over the provisions of Section 37 of the Act are contrary to the provisions contained in Section 36A(3) of the Act. Therefore, the provisions of Section 37(1)(b) of the Act deserves to be struck down.