K.L. Shrivastava, J,

1. This is an application under section 439 of the Criminal Procedure Code, 1973 (for short 'the Code) for grant of bail.

2. According to the prosecution, opium weighing 15.650 grams was seized from the residence of the petitioner on 16-9-1989. It is "narcotic drug' as defined in section 2 (xiv) of the Narcotic Drugs and Psychotropic Substances Act, 1965 (for short 'the Act'), and its possession by the petitioner was in contravention of the provision of section 8 of the Act. It is urged that he is, therefore, punishable under section 18 ibid for a term of 10 years in the minimum.

3. According to the learned counsel for the petitioner, it is clear from the voters list, the certificate of the Gram Panchayat and the affidavit of the petitioner's brother that the residence from where the contraband opium was seized is not in the petitioner's exclusive possession. It is further urged that the element of mens rea not having been excluded by the Legislature, it constitutes an essential element of the crime in question and, therefore, it is necessary for the prosecution to prove not only the corpus possessions but also the animus possedendi.

4. It is urged on behalf of the petitioner that in the circumstances, the petitioner is entitled to be released on bail. In support of his submissions, the learned counsel for the petitioner has placed reliance on the decisions in re A. Ramaswami's case AIR 1959 SC 160, Radhakishan's case AIR 1967 SC 88 and Matadin's case 1980 Cr. LJ 186.

5. Learned counsel appearing for the State opposes the application on the ground that on the material on record it is clear that the petitioner was in possession of the opium and section 35 of the Act provides for presumption of culpable mental state.

6. On behalf of the State, it is further urged that in his signed statement given to Jamnalal Meena, Inspector employed in the Office of the Narcotics, Neemuch Division No.1, the petitioner has admitted his exclusive possession of the contraband opium and the aforesaid statement is not hit either by section 25 of the Evidence Act or by section 162 of the Code. Referring to sections 53 and 53-A of the Act it is urged that as the said Inspector is not entitled to file charge sheet under section 173 Ibid, be is not a Police Officer. In support of this submission, reliance has been placed on the decision in Iilias' case AIR 1970 SC 1065. It is submitted that offences of the sort expose the society to the greatest risk and the petitioner does not deserve to be enlarged on bail. Reference in this connection has been made to the decision in Abdul Hamid Khan Pathan's case 1987 E.F.R. 770 in which it has been pointed out that such offences are graver than the capital crime of murder.

7. Learned counsel for the State further submits that even if the petitioner was entitled to bail under the general provisions of the Code be cannot be released on bail in view of section 37 of the Act substituted by the Narcotic Drugs and Psychotropic Substances (Amendment) Act. 1988, which as a condition of grant of bail, requires the petitioner to show that prima facie he is not guilty of the offence.

8. The point for consideration is whether the bail application deserves to be allowed.

9. Section 437 of the Code provides when bail may be taken by a Court other than the High Court or Court of Session in case of non-bailable offence. Considerations are common both in case under sub section(i) of section -37 and in that under sub-section (i) of section 439 of the Code which relates to special powers of High Court of Session regarding bail.

10. The right of personal liberty is a highly prized one and is guaranteed under Article 21 of the Constitution of India. The procedure therein referred for depriving a person of his life or liberty has to be just. fair and reasonable and opposition for bail has also to be so as pointed out in Sheikh Salim's case 1985 JLJ 65 Reference in this connection may also be usefully made to the decisi