Mohammad Rafiq, J. - (1.) LEARNED Counsel for petitioner has cited the judgment of Supreme Court in Sarija Banu alias Janarthani alias Janani and Anr. v. State: : (2004) 12 SCC 266 and argued that despite the bar of Section 37 of the NDPS Act, this Court at the stage of grant of bail pending trial under Section 439 Cr.P.C. ought to enlarge the petitioner on bail if there is violation of Sections 42 and 50 of the NDPS Act.
(2.) ON the contrary, learned Public Prosecutor has argued that in the present case, quantity of contraband which is recovered from the hand bag being carried by each of the accused petitioner was 2 Kg. and in all there were four accused and total 8 Kg. Charas was recovered whereas, notified commercial quantity of Charas is only 1 Kg. He argued that Section 52 of the NDPS Act would not apply when the recovery is made from a hand bag but from person. He cited the judgments of Supreme Court in : (2009) 1 SCC 482: Ratan Kumar Vishwas v. State of U.P. and Anr. and : (2009) 2 SCC 624: Union of India v. Rattan Mallik alias Habul to show that Section 37 would still apply. Judgments of Supreme Court which has been cited does not lay down a principle of law that provisions of Section 37 of the NDPS Act would be per -se inapplicable at the stage when the bail is sought for and is granted pending trial by recourse to Section 439 Cr.P.C.
(3.) HAVING regard to the enormity and quantity of the contraband seized from the petitioner, I am not inclined to enlarge him on bail.;