Allowed

Ram Kumar and Anr. v. Union Territory of J and K Th SHO Police Station Ghagwal

J&K HC10 Nov 2020Bail App/171/2020

Case brief

AI extract

What is this about?

In entitlement of bail for Narco-DPS cases, High Court held that when quantity is intermediary, Section 37 NDPS does not apply. Successive bail before HC is competent. Bail is rule; refusal is exception. Ballots admitted under stringent conditions.

What did the court decide?

Petitioners enlarged on bail subject to furnishing personal bond of Rs.50,000 each, appearing on dates, not leaving UT of J&K, and not tampering with witnesses.

Ram Kumar and Anr. Vs Union Territory of J and K Th SHO Police… — Narcotics (NDPS) | J&K HC (2020)

¶1

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

¶2

(THROUGH VIRTUAL MODE)

¶3

Reserved on:06.11.2020 Pronounced on: 10 .11.20202

¶4

Bail App No.171/2020

¶5

Ram Kumar and another

¶6

... Petitioner(s)

¶7

Through: - Mr. Jagpal Singh, Advocate.

¶8

Vs.

¶9

UT of J&K through SHO P/S Ghagwal …Respondent(s)

¶10

Through: - Mr. Aijaz Lone, Dy. AG.

¶11

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

¶12

JUDGMENT

¶13

1) The case set up by the prosecution is that on 15.06.2020, Ghagwal Police arrested the petitioners/accused from their possession, 26.500 kgs of Poppy Straw was recovered. Accordingly, FIR No.58/2020 for the offences under Section 8/15 NDPS Act was registered at Police Station, Ghagwal, Samba and investigation was set into motion. According to the prosecution case, after investigation of the case, offences under Section 8/15 of NDPS Act stand established against both the petitioners/accused. Challan against the petitioners has already been filed before the Court of Principal Sessions Judge, Samba.

¶14

2 Bail App No.171/2020

¶15

2) It appears that the petitioners had filed an application for grant of bail in their favour in the aforesaid FIR before the Court of Principal Sessions Judge, Samba, and the same was dismissed by the Court vide order dated 11.08.2020. Being aggrieved of the said order, the petitioners have filed the instant petition before this Court for grant of bail in their favour on the grounds that the investigation in the case is complete and nothing is to be recovered from the petitioners, as such, there is no reason to keep the petitioners behind the bars; that the contraband allegedly recovered from the petitioners does not fall within the ambit of commercial quantity, as such, rigor of Section 37 of the NDPS Act is not attracted to the instant case; that the learned trial court while rejecting the bail petition of the petitioners has not properly appreciated the legal position attending the issue of grant of bail inasmuch as the rule is bail and not jail, which, in other words, means that grant of bail is a rule and its refusal an exception; that the observations of the learned trial court regarding apprehension of the petitioners tampering with the prosecution evidence is without any basis and that in case bail is granted in favour of the petitioners, they are ready to abide by all terms and conditions that may be imposed by the Court.

¶16

3) The respondent in its reply has resisted the bail application by reiterating and reaffirming the contents of challan. As per the reply filed by the respondent, the challan in this case has been filed before the trial Court on 04.08.2020. It has been contended that the order of rejection of bail application of the petitioners passed by the learned

¶17

3 Bail App No.171/2020

¶18

trial Court is based on cogent and sound reasoning, as such, the petitioners are not entitled to bail. It is further contended that the petitioners have committed heinous offence which has adverse impact on the society. Therefore, their bail application deserves to be rejected.

¶19

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

¶20

5 In the instant case, learned Principal Sessions Judge, Smba, has rejected the bail petition of the petitioners. 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 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 Volume 3 page 363).

¶21

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

¶22

7 Coming to the order of the learned Principal Sessions Judge, Ramban, whereby application of the petitioners for grant of bail has

¶23

4 Bail App No.171/2020

¶24

been rejected. It seems that severity of punishment and seriousness of offence alleged to have been committed by the petitioners has weighed with the learned Sessions Judge while rejecting bail application of the petitioners. 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 petitioners has been rejected.

¶25

8 There is no dispute to the fact that the quantity of contraband recovered from the possession of the petitioners 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 petitioners is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of Cr. P. C.

¶26

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, 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:

¶27

“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

¶28

Bail App No.171/2020

¶29

¶30

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 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.

¶31

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 knighterrant roaming at will in pursuit of his own ideal of

¶32

Bail App No.171/2020

¶33

¶34

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.

¶35

10 In the light of the afore-quoted principles, let us now advert to 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 petitioners that the offence alleged to have been committed by the petitioners 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, particularly when the allegations are yet to be established. Allowing the petitioners 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 petitioners are in custody for about five months

¶36

7 Bail App No.171/2020

¶37

now and their 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 petitioners on bail.

¶38

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

¶39

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

¶40

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

¶41