In cases involving offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, bail shall not be granted unless the conditions laid down in Section 37 of the Act are satisfied.

JUDGMENT :

S.C. Mohapatra, J. - This is an application for bail u/s 439 of the Code of Criminal Procedure.

2. Heard Mr. P.K. Misra, learned Counsel for the Petitioner and Mr. H. Kanungo, learned Addl. Government Advocate assisted by Mr. D. Das, learned Addl. Standing Counsel.

3. Petitioner has been arrested on accusation of commission of an offence under Sections 18/20/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') along with her husband who is stated to be absconding for which he is not yet apprehended.

4. Petitioner and her husband remain in the same house. On 10-7-1990, Inspector of Police, Crime Branch seized which is said to be 16 kilograms of Bhang, 2 kilograms of Ganja, 100 grams of Opium and 54 grams Of Heroin from house of Petitioner and her husband. It is alleged that at the time of search Petitioner attempted to throwaway two small packets of polythin which contained materials alleged to be aforesaid opium and heroin. Materials stated to be Bhang and Ganja were in bags below the cot in the room. On seizure of the materials, Petitioner has been arrested and is in Custody. Her application for bail having been rejected by learned Sessions judge, this application has been filed.

5. Offences as attributed to Petitioner attract sentence of 10 years in the minimum. There is no doubt that the offences are anti-social in nature. Keeping the same in view, it is provided in Section 37 that bail shall not be granted unless the conditions laid down therein are satisfied. It reads is follows:

37. Offences to be cognisable and non-bailable

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

(a) every offence punishable under this Act shall be cognisable;

(b) no person accused of an offence punishable for it term of imprisonment of five years or more under this Act shall be released on bailor 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 h not likely to commit any offence while on bail.

(2) The limitation 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 of granting of bail.

6. If Section 37 as referred to above would not have been in the Statute book, Petitioner as woman would have been realised on bail as, provided in Section 487, Code of Criminal Procedure. However, stringent condition have been laid down in effect prohibiting grant of bail. No distinction has been made, for women, children or sick person. u/s 35 of the Act, knowledge of a fact by the accused is presumed.

7. While Mr. Misra, learned Counsel for the Petitioner submitted that even accepting entire materials as it stands, no offence under the Act is made out and in absence of clear material, that Petitioner possessed those materials, in the maximum an offence a, case of attempt to wipe out evidence is only made out, learned Counsel for the State submitted that the fact that Petitioner was attempting to throw away the packets leads to inference that she was in possession of it apart from the fact that in the same room when both husband and wife reside, the incriminating materials were found. According to learned Counsel for the State, Learned Sessions judge has clearly found that it cannot be said that the accused is not guilty of the offences under the Act of that she is, not likely to commit any such offence while on bail.

8. In this case opportunity has been given to the State to oppose the application and the same is opposed. Since investigation is in progress, it is not, possible at this stage to be satisfied that there are reasonable grounds for believing that accused is not guilty of offences alleged.

9.