1. Menace of trade and use of Narcotic drugs and Psychotropic substances has given rise to special piece of legislation, whereunder more stringent punishments have been pre scribed. Discretionary powers exercisable viz-a-viz the connected offenders have been curtailed. Fetters have been imposed on the exercise of discretionary power as ordained by Section- 37 of the NDPS Act. What emerges there from is that the matters pertaining to the commission of offences punishable under the Provisions of NDPS Act are to be dealt with in the background of the social good. Interests of the society are to be safeguarded against the evil repercussions of the Narcotic drugs.

2. Earlier Section-37 of the NDPS Act took into its sweep all offences punishable under the Act, but now pursuant to amendment operation of Section-37 of the Act has been limited in its operation only to such offences which are punishable under Section-19, Section-24, Section- 27(A) and all offences involving commercial quantity of the Narcotics. The fetters imposed by Section-37 of the Act are applicable only under said position of the case. If the case does not fall within the scope of Section-37, then grantor refusal of the bail has to be considered under Section- 497 of the Cr. P.C.

3. Section-497 Cr.P.C. empowers courts to consider grant or refusal of the bail. As per Sub Section-1 of Section-497 Cr. P.C. a person is not to be released, when reasonable ground exists for believing that he has committed the offence punishable with death or imprisonment for life, whereas in rest of the non bailable offences restriction is not applicable. I have the benefit of going through the Judgment reported in 2005 AIAR (Crl.) page 607, wherein it has been observed:

"It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view." For grant or refusal of the bail, discretion vested with the court is to be exercised on sound judicial principles.

4. In this connection it shall be quite relevant to quote from the Judgment reported in AIR 1978 SC page 430.

Bail or jail? at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, adhoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glambrize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of `procedure established by law. The last four words of Art. 21 are the life of that human right. "

5. Coming to the case in hand what has happened is that the accused seeker of the bail in connection with case registered as FIR 39/07 Police Station Shopian has been arrested on 2.4.2007 for having committed the offence punishable under Section-15/18 NDPS Act. On behalf of the petitioners/accused, petition for grant of bail has been moved before the court of Learned Session Judge Pulwama, who has declined the grant thereof vide ord

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