The first proviso to Section 437, Cr. P. C., which allows for bail to certain classes of persons, including infirm persons, is an exception to the general principles of not granting bail in certain cases and has not been taken away by the special provisions of Section 37 of the N. D. P. S. Act.

A. S. TRIPATHI, J.

Applicant, Prem Narain Sharma, is involved in a case Crime No. 867 of 1991 under Section 8/21, N. D. P. S. Act, Police Station Jaitpur district Varanasi.

2. It is alleged in the F. I. R. that the applicant alongwith one Atul Kumar Sharma was found at railway station Cantt, Varanasi when they were apprehended. It is alleged that 100 grams of heroin was recovered from the possession of the applicant and 170 grams heroin was recovered from the possession of Atul Kumar Sharma. The affidavit filed in support of the bail application shows that Atul Kumar is the nephew of the applicant. The applicant has denied the recovery of heroin from his possession.

3. The applicant has taken only one ground for grant of bail in his application that he is an infirm person being physically handicapped and he claims bail on that ground. He has also alleged that his wife is also disabled person and the applicant was unable to move alone.

4. I have heard learned Counsel for the applicant. I have also heard the learned Counsel for the Union of India, Sri Shiva Ji Misra, at great length on all points in view of Section 37, N. D. P. S. Act and the provisions contained in the Criminal Procedure Code.

5. The first point raised was that the provisions of Section 437, Cr. P. C. do not apply and the applicant cannot claim the benefit of the proviso to Section 437, Cr. P. C. in view of the provisions of Section 37 of the N. D. P. S. Act.

6. The general principles of bail are contained in Sections 437 and 439, Cr. P. C. The special provisions are contained in Section 37 of the N. D. P. S. Act.

Section 37 of the N. D. P. S. Act provides as under:

"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(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 (2) of (1974) or any other law for the time being in force on granting of bail.

It was argued by the learned Counsel for the applicant that in spite of special provisions contained under Section 37 of N. D. P. S. Act exception provided under Section 437, Cr. P. C. are not taken away. Section 437, Cr. P. C. provided that when any person is accused of commission of any non-bailable offence, punishable with death or imprisonment for life or such person has been previously convicted with death, imprisonment for life or imprisonment for seven years or more is not entitled to bail, but first proviso has been added to this which is as below: -

"provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. "

7. It has been contended on behalf of the applicant that the applicant being physically disposed comes under the category of an infirm person and under this Proviso he is entitled to bail. The learned Counsel

for the State and the Union of India vehemently urged (sic) that the benefit of this provision cannot be given to the applicant in view of the special provisions contained under Section 37 of the N. D. P. S. Act.

8. The learned Counsel for the Union of India referred the case of Narcotic Control Bureau v. Krishna Lal and others, AIR 1991 SC 558: 1991 JIC 275 (SC ). It was held in that case the High Course power under Secti

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