Allowed

Manzoor Ahmed v. Union Territory of J and K Th SHO Police Station Ramsoo

J&K HC9 Nov 2020Bail App/108/2020

Case brief

AI extract

What is this about?

This bail petition was allowed. The High Court held that the High Court can entertain successive bail applications despite rejection by the Sessions Court. Since the contraband quantity was intermediate, Section 37 NDPS Act did not apply. Bail was granted as detention for over eleven months without trial amounted to punishment.

What did the court decide?

Petitioner admitted to bail on personal bond of Rs. 50,000 with one surety and undertaking to appear in court, not leave J&K, and not tamper with witnesses.

Manzoor Ahmed Vs Union Territory of J and K Th SHO Police… — Narcotics (NDPS) | J&K HC (2020)

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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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(THROUGH VIRTUAL MODE)

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Reserved on: 05.11.2020 Pronounced on: 09.11.20202

Bail App No.108/2020

Manzoor Ahmad

... Petitioner(s)

Through: - Mr. Rohit Sharma, Advocate.

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Vs.

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Union Territory o J&K through SHO P/S Ramsoo …Respondent(s)

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Through: - Mr. Jamrodh Singh, GA

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CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

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JUDGMENT

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1) As per the prosecution case, on 07.12.2019, in a routine checking

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at Naka checking Naka Point Ramsoo, ASI Mohammad Iqbal along with other police personnel intercepted one TATA Sumo bearing registration No.JK03A-9708 that was coming from Srinagar towards Jammu. Upon its search, two persons including the driver were found sitting in the vehicle and on enquiry, they disclosed their names as Hamidullah Khan, the driver and Manzoor Ahmad, the petitioner herein. Four gunny bags were also found in the vehicle and on opening the said bags, one white coloured packet was found in each of the gunny bags . Upon opening the packets and weighing the same, 25 kgs

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of Bhukki was found therein. The recovered Bhukki was seized on spot and FIR No.112/2019 for offence under Section 8/15 of NDPS Act was registered at Police Station Ramban. After investigation of the case, offences under Section 8/15 of NDPS Act stand established against the petitioner/accused. Challan against the petitioner has already been filed before the Court of Principal Sessions Judge, Ramban.

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2) It appears that the petitioner had filed an application for grant of bail in his favour in the aforesaid FIR before the Court of Principal Sessions Judge, Ramban, and the same was rejected by the Court vide order dated 20.03.2020. Being aggrieved of the said order, the petitioner has filed the instant petition before this Court for grant of bail in his favour on the grounds that the contraband allegedly shown to be recovered from the possession of the petitioner is an intermediate quantity, as such, the rigor of Section 37 NDPS Act will not apply to the present case and the present case is required to be dealt as per the provisions contained in Section 437 of the Cr. P. C; that this Court has already given bail to accused in similar matters; that the petitioner is in judicial lockup since his arrest on 07.12.2019, that too without any kind of involvement or concern with the present case and his continuous detention has caused harassment to the petitioner and his family; that till date no witness has been produced by the prosecution and there is no possibility of production of any witness in near future because of the restrictions due to outbreak of Corona virus epidemic; and that the

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petitioner is ready to abide by all terms and conditions that may be imposed by the Court in the event of grant of bail in his favour.

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3) The respondent has resisted the bail petition by filing objections thereto. In its objections, respondent has opposed the grant of bail in favour of the petitioner on the ground that he is involved in the illicit trade of sale and purchase of narcotic substances which is very dangerous to the society, especially for young generation; that if the petitioner is enlarged on bail, he will again repeat the similar offences and will continue to destroy the young generation of the society.

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4) I have heard learned counsel for the parties and perused the record.

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5 In the instant case, learned Principal Sessions Judge, Ramban, has rejected the bail petition of the petitioner. The question that arises for consideration is whether or not successive bail applications will lie before this Court. The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, I am supported by the ratio laid down by the Supreme Court in the case titled

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Gurcharan Singh & Ors vs. State (Delhi Administration), AIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. State, ( 1987 Crimes Vol 3

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Page 363).

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6 Thus, the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar

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application under Section 439 Cr. P. C on the same facts and for the same offence.

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7 Coming to the order of the learned Principal Sessions Judge, Ramban, whereby application of the petitioner for grant of bail has been rejected, it seems that severity of punishment and seriousness of offence alleged to have been committed by the petitioner has weighed with the learned Sessions Judge while rejecting bail application of the petitioner. According to the learned Judge, the menace of trade in use of narcotic drugs and psychotropic substances is required to be curbed with a heavy hand and for this reason bail application of the petitioner has been rejected.

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8 There is no dispute to the fact that the quantity of contraband recovered from the possession of the petitioner does not fall within the parameters of commercial quantity and that the same is an intermediary one. The rigor of Section 37 of NDPS Act, therefore, is not attracted to the instant case. The bail petition of the petitioner is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of Cr. P. C.

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9 It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case. A Coordinate Bench of this Court, while discussing the principles to be followed in a case where intermediary quantity of contraband was recovered from the accused,

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has, in the case of Mehraj-ud-Din Nadroo and others Vs. State of J&K ( BA No.74/2018 decided on 07.07.2018 ), observed as under:

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“9. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of "bail or jail" in non-bailable offences. Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial

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punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

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10.The word "judicial discretion" has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains." Even so, it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable.

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10 In the light of the afore-quoted principles, let us now advert to

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the facts of the instant case. As already noted, the quantity of contraband allegedly recovered from the accused does not fall within the parameters of ‘commercial quantity’ and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affect the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application,

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particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for more than eleven months and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail.

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11 Apart from this, the respondents have not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved.

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12 For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions:

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(i) That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;

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