The main legal point established in the judgment is the application of Section 37 of the NDPS Act and the principle of parity with a co-accused in granting bail.

1. Learned 1st Additional Sessions Judge, Baramulla, has declined to grant bail in favour of the petitioner herein in terms of order dated 29.12.2017, passed in applications, three in number (filed by various accused), referred in the petition as Annexure-PA. The petitioner, in view of the same, has filed the instant bail application wherein he has projected his case for being entitled to bail on the grounds, precisely, extracted below :

(A) That the continued detention of the petitioner is not legally warranted and he deserves to be released on bail;

(B) That by continued detention, the petitioner is denied the right to prove his innocence and also denying his right to arrange for proper and effective defense in the case;

(C) That the petitioner is in languishing in District Jail, Baramulla, for last 07 months;

(D) That the petitioner is seriously ill and in this regard a report has been submitted by the Medical Officer of the Jail which reveals that the person of the petitioner is suffering from heart ailment;

(E) That the case in which the petitioner has been implicated is totally false;

(F) That the rigor of Section 37 of the NDPS Act is not applicable;

(G) That one of the accused, namely, Mohammad Ashraf Yatoo, has been released by this Court, therefore, petitioner is entitled to same treatment.

2. In the reply/objections filed on behalf of the respondent, prayer has been made for dismissal of the application by putting forth that there is credible and cogent evidence available regarding involvement of the petitioner in the commission of crime; the petitioner is involved in heinous crime which is rarest of rare one and since the petitioner is still under trial, in the event of bail in favour of the petitioner, there is every possibility that the petitioner will influence the witnesses and that there are reasonable grounds for believing that the accusation against the accused is prima facie true.

3. Heard learned counsel for the parties. Learned counsel for the petitioner has taken reliance on various judgments including Amar Singh Ramjibhai Barot v. State of Gujarat, ((2005) 7 SCC 550), Sanjay Chandra v. Central Bureau of Investigation (AIR 2012 SC 830) and Vinod son of Satyanarayan Lohiya v. The State of Maharashtra (1996 (1) Bom. CR 483), and contended that the petitioner is entitled to bail. It is being emphatically contended that the mischief of Section 37 of the NDPS Act being not applicable to the case, it would have been in the ends of justice to admit the petitioner to bail. It is also his plea that the learned 1st Additional Sessions Judge having observed in the order, in terms of which his bail application was rejected, that the quantity involved was intermediate and not commercial, the petitioner could not be permitted to be incarcerated in jail. The petitioner, admittedly, having been arrested on 08.10.2017 and continues to languish in the jail without any progress in trial. Furthermore, according to him, one of the persons, referred in the First Information Report, has been admitted to bail by a Coordinate Bench of this Court in terms of order passed on 7th of April, 2018, the petitioner, on the application of principle of parity, is to be granted same treatment. According to learned counsel for the petitioner, investigating agency though having projected that the accused referred in the First Information Report were arrested at the venue but the recoveries are attributed individually. Thus the common intention or conspiracy cannot be ascribed to the petitioner so as to bracket the substance alleged to have been recovered from each of them a single one.

4. On the other hand, learned counsel for the respondent contended that the learned 1st Additional Sessions Judge has passed a proper order. The Court cannot shut eyes towards public interest and individual interest has to give way to it in a case of present nature. It is also his contention that though the recoveries have been made on personal search of the a