( 1 ) AGGRIEVED by the order dated 21-9-1994 passed by the learned additional City Sessions Judge, Court No. 15, Ahmedabad, in Misc. Criminal application No. 1793 of 1994, enlarging the respondent on bail in a case registered against her vide C. R. No. 6 of 1994 under the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as "the N. D. P. S. Act" for short), the state of Gujarat has preferred this application under S. 439 (2) of the Criminal procedure Code for cancellation. In order to appreciate rival contentions, it would be apposite to state briefly facts of the case.

( 2 ) RESPONDENT, Sairabanu, wife of Iqbalbhai Shafimohmad, is sharing common roof and bed of her husband at house No. A/8, Jantanagar Society, Ramol Road, ahmedabad. On a secret information that said Iqbalbhai is dealing in contraband drugs, raid was carried. On search of person of Iqbalbhai Shafimohmad, some contraband goods (43 packets) like brown sugar were found from the pocket of his shirt. The raiding party also decided to search the house including an Almirah (cupboard ). Since the almirah was locked, the officer inquired about the key whereupon the present respondent, Sairabanu, handed over key and the cupboard was opened by Police Inspector Mr. Khant. From one of the drawers, the raiding party found one polyethylene bag containing 95 small packets like 43 others found from the person of Iqbalbhai Shafimohmad. As the 95 packets contained substance like brown sugar, a case was registered vide C. R. 6 of 1994 under Secs. 22 and 29 of the N. D. P. S. Act against the present respondent and in logical consequence she was arrested and sent in judicial custody. It is in this background that the respondent preferred the aforesaid Misc. Criminal Application under S. 439 of Cr. P. C. and the learned Addl. Sessions Judge by his impugned order, enlarged her on bail.

( 3 ) WHILE passing this order, the learned Judge has observed that though the respondent was having the key of cupboard from which contraband goods were seized, she could not be deemed to be in conscious possession and, therefore, the prosecution shall be deemed to have failed to establish prima facie case against the respondent. In other words, while making this observation, the learned Judge appreciated the evidence on merits as to whether in a given set facts and in the facts and circumstances the respondent can be legally said to be in possession of contraband articles/goods.

( 4 ) NO doubt, it may be noted that ordinarily discretion exercised by subordinate court under Secs. 437 and 439 of Cr. P. C. for grant or refusal of bail should not be interfered except in a case where cogent and overwhelming circumstances 3are brought on record. The Supreme Court in the case of Dolat Ram v. State of Haryana, 1995 (1) SCC 349 has observed that the order of grant or refusal of bail should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. While making this observation, it has also been held that ordinarily the discretionary powers exercised by the trail Court should not be interfered but in a case showing cogent and overwhelming circumstance, it would be in the interest of justice to interfere and cancel the order granting or refusing the bail. While referring to the practice and procedure generally adopted by the Courts, it is also observed that at the stage when the bail applications are decided, the Court should refrain from expressing any opinion on merits at that stage which is no more less than an initial/pretrial stage. In this case, the learned Judge has observed that though the key of the cupboard was given by respondent yet the respondent could not be deemed to be in conscious possession of the contraband articles/goods found. This observation, in my opinion, is th