1. Are women to be accorded special consideration in matters of grant of bail, is the interesting question posed in this bail application.

2. Petitioner, Harbans Kour was arrested on July 9, 1993 on a charge of trading in opium. She was booked under section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 following seizure of 3 Kgs. of opium from her room and is standing trial before the Ld. Session Judge, Jammu. Her bail application has been rejected by the trial court and she had now come up to this Court for her release.

3. Petitioner™s case is more based on gender and revolves round the ambit and scope of Section 36-C of the Act. Her counsel, Mr. Tak builds his castle round this provision and contends that as Section 36-C makes provisions of Cr. P.C. (including those related to Bail and Bail Bonds) applicable to proceedings under the Act, Section 497 Cr. P.C. becomes automatically applicable and since proviso to this Section permits release of women even in offences punishable with death and life imprisonment, it follows as a necessary collarly that women constitute an exception and deserve special consideration in case of offences under the N.D.P.S. Act also. He goes a step further and urges that Section 37 of the Act which contains stringent conditions for grant of bail is not applicable to women and in their case Section 497 Cr. P.C. alone is the guiding factor.

4. The argument appears both attractive and imaginative, if not fanciful, on a superficial view but comes out week in substance on a closer scrutiny. It would be advantageous at this stage to extract the relevant provisions to under line its fallacy:

"36C. Application of Code to proceedings before a Special Court - Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor."

"37. Offences to be cognizable and non-bailable-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

a) every offence punishable under this Act shall be cognizable;

b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

i) the Public Prosecutor has been given an opportunity to oppose the application for such . release, and

ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

2) The limitations on granting of bail specified in clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail".

Section 497 Cr.P.C:

"When bail may be taken in case of non-bailable offence, (1) when any person accused of (or suspected of the commission of) any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

Provided that the Court may direct that any person under the age of sixteen years or any women or any sick or infirm person accused of such an offence be released on bail."

A plain reading of the provisions shows that Section 36-C applies provisions of Cr.P.C. including Bail provisions to proceedings before the Special Judge. It, however, begins with a saving clause and the words "save as otherwise provided in this Act", saves the other provisions of the Ac

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