JUDGMENT

D. M. Patanik J. - In the above cases the petitioners move for bail for alleged offences under the Narcotic Drugs an Psychotropic Substances Act, 1985 (in short, the 'Act').

2. The collective voice of the petitioners' counsel in all these cases and other cases of similar nature manifests in their devoutness in human dignity and liberty, when Mr. Deepak Mishra learned counsel for one of the petitioners as a prelude to his argument referred to the saying of Patrick Henry "give me liberty or give me death", quoted by one of the learned Judges of this Court in the case of Mangal Hembram v. State of Orissa1 .

3. Liberty is fundamental and precious to everybody. Man is a divine being. He lives in the society and therefore, claims right, liberty and equality. Humap rights cannot be evaluated in isolation. They have to be read in the social context. Liberty of an individual can be curtailed

in a given situation when exercise of that right of the Individual works out to the detriment of another individual and the society at large. As Justice Krishna Iyer observed in the case of Bahu Singh v. State of Uttar Pradesh2, "after all personal liberty of an accused or a convict is fundamental, suffering lawful eclipse only in terms of procedure established in law. The last four words of the Article 21 are the life of that human right".

4. Therefore, liberty of free movement can be curtailed in a given case but through legal procedure alone. We may, therefore, examine whether release of the petitioners on bail should be allowed as claimed by them.

5. The petitioners face indictment for offences in illicit drug trafficking and some of them are in custody pending investigation. They seek release on bail on the logic that if, because of the violation of the mandatory provisions of the Act relating w search and seizure etc. under Sec. 42 and Sec. 50 as has been held by the apex Court in the case of State of Punjab v. Balbir Singh3, proceedings are vitiated and they will be ultimately acquitted, there is no reason for their further detention in custody. .

6. The submission is no doubt demanding attractive and pursuasive; but keeping in view the seriousness of the offence, the legislative intent in providing a stringent provision in the matter of bail under Sec. 37 of the Act, to accede to such a submission would not only lead in facilitating and encouraging the offence of illicit drug trafficking but also it would frustrate the whole purpose for which the Act has been brought out in its present amended form.

It would be apposite to deal with the Courts power in exercising the judicial discretion in the matter of bail in general.

7. While dealing with the discretion to grant bail, Sulaiman, J. in the famous Meerut conspiracy case reported in K.J. Joglekar v. Emperor4 held as under:

There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is not only one single circumstance which necessarily concludes the decision but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified or catalogued exhaustively."

8. Tek Chand, J. in the case of Rao Harnarain Singh Sheoji Singh and others v. The State5, while dealing with a case under Section 497, Cr. P. C. (old Code) held that the probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail particularly in a case in which evidence has not so far been led. The Courts while deciding such applications will be traversing beyond their proper in habit and would be exceeding the limits of their function if they engage themselves in discovering the guilt or innocence of the accused-appellant which can only be determined at the trial stage.

It was further reasoned that the fact that the accused persons have bee