( 1 ) CONSIDERED case diary.

( 2 ) IT is the submission of Shri A. H. Khan, that prosecution case itself shows that the applicant and her husband Sabir Ahmed were in the concerned house when the raiding party visited it and after seeing the arrival of the raiding party, Sabir Ahmed ran away. He pointed that as the husband ran away, this applicant was arrested by the raiding party and now she has been put to face the prosecution along with her husband Sabir Ahmed. These facts indicated by the prosecution case have not been denied by Shri Desai because they are consistent with the case diary.

( 3 ) SHRI A. H. Khan argued that there should be material on record to come to conclusion that the applicant was in exclusive possession of house where narcotic drug was found and should be in exclusive possession of Narcotic Drug. He placed reliance on the judgements of this Court in the following cases :1. Kishanlal v. State of M. P. , (1994 (1) EFR 594 in which this Court held that -"in absence of evidence connecting that accused with recovery, conviction was liable to be set aside. "in that case the Court found that the place from where narcotic rug was recovered, was accessable to any-body. 2. Smt. Phool Kunwarbai v. State of M. P. , reported in 1994 (1) EFR 600, where this Court held that -"when contraband articles were seized from the cloth bag which was kept in "bakhi" of a house where cow dung cakes were stored, the accused cannot be held to be in conscious possession of narcotic drug. "3. M. Cr. C. 1977/94 (Attaullah @ Attu s/o Aziz Khan v. CBN, Indore this Court held that -"where there is no satisfactory material in proof of the ownership or possession of the house, the accused deserves to be released on bail. "

( 4 ) SHRI Khan also placed reliance on Jammu and Kashmir High Court judgement, reported in 1994 (1) EFR 298, Gulam Mohiudin v. State of J. and K. , where in the Court held that -"recovery of CHARAS from the house occupied by several persons and when there is no evidence to show that recovery was made from possession of the accused, it was fit case for grant of bail. "in this matter J. and K. High Court considered restrictions put by provisions of S. 37 of NDPS Act, 1985 (hereinafter referred to as NDPS Act for convenience ).

( 5 ) SHRI Desai, argued that in view of the judgement of Supreme Court in the matter of Union of India v. Thamisharasi, reported in 1995 SCC (Cri) 665, it is for the accused to bring it to the notice of the Court that it is a case where the Court would be satisfied that there are reasonable grounds for believing that accused is not guilty for such offence (an offence punishable under NDPS Act), in such case only the accused can be released on bail.

( 6 ) HE placed reliance of Supreme Court decision in the matter of State of Punjab v. Dharmindar Kumar @ Kaka, reported in 1995 SCC (Cri) 835, wherein the Supreme Court held that -"when the order granting bail is stating that it cannot be said at this stage as to whether the accused is guilty of offence or not. Provisions of S. 37 of NDPS Act have been breached. "

( 7 ) SHRI Desai, also placed reliance on the judgement of Supreme Court in the matter of Supreme Court Legal Committee representing under trial persons v. Union of India, reported in 1994 (6) SCC 731-747, wherein Supreme Court judgement observed that the "the accused under NDPS Act are getting bail on technical ground. "

( 8 ) SHRI Desai submitted by pointing this judgement of Supreme Court that there is trend of accused getting the bail on technical ground and therefore, provisions of S. 37 should be strictly applied.

( 9 ) SHRI Desai placed reliance on the judgement of Division Bench of this Court wherein it has been held that "at the time of considering the bail, an enquiry cannot be made in respect of compliance of provisions of S. 50 of NDPS Act.

( 10 ) BY referring to this judgement, he submitted that in the present case no enquiry could be made in respect of compliance of