- (1.) C. P. Mishra, J. This application has been filed on behalf of the applicant accused - Bhagirath Tiwari who has committed an offence under Section 8/18/22 N. D. P. S. Act vide case Crime No. 467 of 2002, P. S. Soron, district Etah.
(2.) THERE is recovery of 15 gms. Smack from the pocket of the accused-applicant by the police party while patrolling on 13-7- 2002 at 4. 30 a. m. at Somowar Ghat near Roadways Bus Stand. It is submitted that the applicant is innocent and has been falsely implicated in this case due to village party bandi and there is no public witness in the recovery memo whereas large numbers of persons were present on the public place at that time and the compliance of Section 50 N. D. P. S. Act has also not been made by the police in this connection and further submitted that the applicant is an old person of aged about 62 years and he is not previous convict. Learned A. G. A. has, however, challenged the claims and contentions of the applicant by submitting that the provisions of Section 37 (1) (b) to be a bar of such release on bail applied by the applicant in this connection.
(3.) FOR this, Sri A. K. Singh, learned Counsel for the applicant and Sri D. S. Mishra, a Senior Counsel who has also made his submissions regarding said legal position in this connection on the basis of the recent judgments given by this Court in Abdul Aziz v. State of U. P. , 2002 (1) JIC page 867 (All); Rajesh Singh v. State of U. P. , 2002 (1) JIC page 637 (All) and Ishtiyak Ali alias Shera v. State of U. P. , 2002 CBC 522. He has also placed reliance on case law of Orissa High Court, Rupadhar Patel v. State of Orissa, 2002 (2) Crimes page 223; Orissa High Court and Smt. Padma Mishra v. State of Uttaranchal, 2002 (2) JIC page 39 (Uttaranchal) High Court. Relying upon the aforesaid case laws, learned Counsel for the applicant has submitted that after the amendment incorporated in Section 37 of the Act, the offence under Sections 19, 24 and 27-A of the Act, the provision for bail has been given in the Cr. P. C. will also apply. This position is very much clear on the bare perusal of the aforesaid provision of 37 (b) of the Act which read as under : "no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity 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. ";