Research › Browse › Judgment

Madhya Pradesh High Court · body

1989 DIGILAW 95 (MP)

Sitaram s/o Radheshyam v. Union of India

1989-03-11

R.C.LAHOTI

body1989
ORDER R.C. Lahoti, J. 1. The applicant has been arrested in connection with Crime No. 1/88 of Central Narcotics Bureau Centre, Guna, charging him with commission of a crime under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter N.D.P.S.A. for short). A new Premier Padmini Car bearing temporary registration No. MBB 460 was moving on A-B Road from the manufacturer to a dealer at Gwalior. When this car was passing through township of Binaganj this applicant took a lift giving out a pretext that his wife was admitted at Civil Hospital, Guna, upto which point he wanted to travel. A little later, the movement of car was intercepted and the applicant was found sitting with a bag in his hand. The bag contained opium weighing 6.700 Kgs. The driver of the car too has stated to the police that it was this applicant to whom the bag belonged. The investigation conducted by the Narcotics Bureau reveals that this applicant is engaged in smuggling and earlier also he had carried opium on one occasion. The applicant is resident of Mehgaon a place situated at a remote distance from the place where he took lift in the car. The reason which he advanced for being at Binaganj was not substantiated during investigation. The Chemical Analyser has found the seized article to be opium. Since 23-1-1989 the applicant is in custody. The Sessions Court has rejected the prayer for bail. 2. Before this Court implicit reliance has been placed by the learned counsel for the applicant on a decision of this Court namely Ramesh Chand vs. State of M.P. Misc. Cr. Case No. 1048/1987, decided on 28-7-1987 at Indore and published as Short Note in 1987 Cri. L.R. M. P. Section 324. It is further contended that this decision has been relied on to grant bail by this Court in several subsequent cases, one of them being Rameshwar Prasad vs. Union of India, Cr. Misc. Case No. 911/1986, decided on 15-10-1988 and published as Short Note in 1988 MPWN 2 223. This decision is also relied on by Shri Gupta, In addition, he cites Fouji Ram vs. State of Haryana, 1988 Cri.L.J. 29. 3. It is the time to make some observations about indiscriminate reporting of the decisions of High Courts, though not approved for reporting and mostly published as Short Notes. This decision is also relied on by Shri Gupta, In addition, he cites Fouji Ram vs. State of Haryana, 1988 Cri.L.J. 29. 3. It is the time to make some observations about indiscriminate reporting of the decisions of High Courts, though not approved for reporting and mostly published as Short Notes. The Criminal Law Reporter published from Jodhpur has reported the decision of Indore Bench in Ramesh Chand by omitting paragraphs 1 to 4 and 6, 7 from reporting but publishing only paragraphs 5 and 8 of the decision, naturally the Short Note as printed provides a reading of the order, divorced from the context. What has been published as paragraph 5, simply re-states the well established proposition of law that bail is not to be refused as a measure of punishment because the question of punishment properly crops up for consideration at the conclusion of trial. What has been published as paragraph indicates that it was on a careful consideration that the Court look the view that the accused-applicant therein deserved to be enlarged on bail. Presumably that careful consideration must have been on the facts of that case. Rameshwar Prasad as published in 1988 2 MPWN 223 was cited before the Court below, who chose not to blindly follow the short noted decision. I appreciate the courage of the learned Judge that he commented on the Short Note and rightly. The learned Judge while rejecting the application for bail said: The above quoted observation of the learned Additional Sessions Judge impelled me in calling for the original order in Rameshwar Prasad and totally the same with the Short Note as published. I find that the learned Judge is right. I reproduce the relevant Part of that order herein so as to enable a comparison with the Short Note. It is alleged that 2,400 Kgs. of Opium has been recovered from the possession of the accused applicant. The learned counsel for the applicant has relied on a decision of this Court in Ramesh Chandra vs. State of M. P., Cr. L.R. (M.P.) 1987 324 and has submitted that bail ought not to be held-up. Taking all the facts and circumstances of the case into consideration it is directed that accused applicant shall be enlarged on bail during the pendency of the trial subject to his furnishing a personal bond in an amount of Rs. L.R. (M.P.) 1987 324 and has submitted that bail ought not to be held-up. Taking all the facts and circumstances of the case into consideration it is directed that accused applicant shall be enlarged on bail during the pendency of the trial subject to his furnishing a personal bond in an amount of Rs. 50,000/- (Rupees Fifty Thousand) with two solvent sureties in an amount of Rs. 25,000/- (Rupees Twenty-five Thousand) each to the satisfaction of C.J.M., Guna. The learned counsel for the applicant has volunteered to undertake that in the event of the accused applicant being granted bail by this Court, the sureties which he would be producing shall be local i.e. of District Guna. This undertaking is accepted and made part of the order. 4.01. This Court in Rameshwar Prasad never said that "bail should not be withheld" in offences under Sections 8 and 18 of N.D.P.S.A. as has been published in M. P. Weekly Notes. It was simply an argument of the applicant's counsel in that case relying on Cr.L.R. Short Note that bail ought not to be held up. Reproduction of counsel's contention could never be deemed to be an observation of the Court much less a point decided or the law laid down. 4.02. It may also be pointed out that the quantity of opium involved in Rameshwar Prasad's case was 2.400 Kgs. The short Note publishes it as 2,400 Kgs. It is not difficult to visualise what have this Short Note might have played with the subordinate courts by this time. It might have been brought to their notice to guide (misguide?) them and the courts feeling bound by a decision of the High Court must have faultered moving on wrong tracks several times. 4.03. Madhya Pradesh Weekly Notes, published by Law Journal Publications, Gwalior, have not brought out any corrigendum till this day to my knowledge. 5. An order on bail application, summary in nature, based on summary hearing, is never a precedent nor can be cited as an authority laying down law by the High Court unless and until a question or principle of law did arise for determination and was decided therein. It is unfortunate that such bail orders, confined in their operation to that case, and having life to expire with that case alone, are published as Short Notes creating a plethora of confusion before the Courts. It is unfortunate that such bail orders, confined in their operation to that case, and having life to expire with that case alone, are published as Short Notes creating a plethora of confusion before the Courts. In Nirmal Kumar vs. Brijlal. M. A. No. 367 of 1982 (J.) decided on 20-8-1986, published as 1986 2 MPWN 248, the practice of going by Index-Notes without reading the judgment fully was condemmed by Gulab Gupta J. 6. Very recently in Delhi Municipal Corporation vs. Gumam Kaur, AIR 1989 SC 38 the Apex Court held: Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided............ The task of finding the principle is fraught with difficulty because without an investigation into the facts, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. Precedents sub silentio and without argument are of no moment. In State of Orissa vs. Sudhansu Sekhar Misra and others, AIR 1968 SC 647 the Apex Court considering earlier Privy Council and its own decisions, reiterated the law of procedenta in these words: A decision in only an authority for what it actually decides. Which is of the essence in a decision is its ratio and not every observation found therein not what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. (Emphasis supplied) This Court too summed up the law of precedents in Union of India vs. Shankarlal, 1973 MPLJ 843 : 1972 JLJ 1039 having read the Supreme Court decisions on the point and said: It is axiomatic that a decision is an authority for the question of law which it decided and not for a question which was not considered or raised. A case cannot be an authority on a point of fact; each case has to be examined in the light of the circumstances existing in it. A precedent, therefore, is a judicial decision which contains in itself a principle. A case cannot be an authority on a point of fact; each case has to be examined in the light of the circumstances existing in it. A precedent, therefore, is a judicial decision which contains in itself a principle. (Emphasis supplied) It follows that a bail order, in its operative part, proceeds on the peculiar facts of that case, stated and sometimes not stated, in that order, and on a consideration of complexity of facts and circumstances of that case sometimes told and sometimes untold, in the order. That order cannot be an authority on a point of fact. The principles emerging from authorities and stated hereinabove apply with regenerated vigour to bail orders. 7. The idea behind publishing Short Notes appears to be to flash or crash a news that a particular case or a point of law has been heard/considered and decided by a Court. A Short Note cannot be a substitute for a report. At best it can serve as an index or digest to the cases decided. It is expected of the law journals publishing Short Notes that they reproduce the law, as far as practicable, in the words of the Judge deciding the case. It is equally expected of the counsel relying on the decision to produce a certified copy of the judgment/order of the case proposed to be relied on before a Court of law, having gathered the information about the same from a short note, A court of law on an authority before whom the Short Note is cited, relying as a precedent, would not be unjustified if it insists on production of a certified copy of full judgment/order and refused to go by merely a Short Note. 8. The principles as to grant of bail are well settled and hardly need to be reiterated. Recently this Court had occasions to refer to them in Kalyansingh vs. State (Cr. Misc. Case No. 453/1988. decided on 7-6-1988) and Daini @ Raju vs. State of M.P. (Cr. Misc. Case No. 114/1989, decided on 14-2-1989). An approach in the matter of bail claimed by an accused of an offence under N.D.P.S.A. cannot be different except that the gravity of sentence has to be kept additionally in view as a factor affecting the likelihood of the availability of the accused at the trial. Misc. Case No. 114/1989, decided on 14-2-1989). An approach in the matter of bail claimed by an accused of an offence under N.D.P.S.A. cannot be different except that the gravity of sentence has to be kept additionally in view as a factor affecting the likelihood of the availability of the accused at the trial. It can also not be lost sight of that drug-abuse is a menace to the society and is spreading like an epidemic vilifying all efforts at combating it. N. D. P. S. A. had to be eacted to make stringent provisions, as its preamble speaks. 9. Recently in Raffique Mohammad vs. Union of India, M. P. No. 836/88 (1) decided on 1-2-1989 ( 1989 MPLJ 406 ) this Court had an occasion to examine the provisions of N.D.P.S.A. and R. K. Verma, J. speaking fur the Division Bench said: The illicit traffic in narcotice drugs and psychotropic substances is clandestinely organised and carried on and the activities of such illicit traffic largely go undetected because of the considerable economic interests of all those involved in such activities. The acts within the meaning of 'illicit traffic' in narcotic drugs and psychotropic substances are committed in a concealed and clandestine manner, firstly, because of such acts having been made serious of fences pre-emptorily punishable with long Jail sentences and heavy fines under the Narcotic Act and secondly, because of substantial stakes of monetary interests of persons involved in such illicit traffic. 10. Discretion of the Court faced with a prayer for bail in such offences cannot be bound down in any straight jacket or mathematical formula such as ; Bail in Rameshwar Prasad and bail in Ramesh Chand, hence bail for Sitaram. 11. A word of caution 1 may not be understood as laying down a proposition of law the bail must not be taken or can never be taken in cases under N. D. P. S. A. I am only referring to the additional consideration which ought to be kept in view while dealing with such matters. Let the Topic be closed by borrowing once again from K. L. Shrivastava, J. from what he spoke in Shantilal vs. State of M. P. (Misc. Cr. Case No. 902/1988 decided on 23-8-1988 at Indore). Let the Topic be closed by borrowing once again from K. L. Shrivastava, J. from what he spoke in Shantilal vs. State of M. P. (Misc. Cr. Case No. 902/1988 decided on 23-8-1988 at Indore). A person accused of non-bailable offence cannot claim bail as of right and the question of grant of bail to such a person is left by the legislature in the Court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition, methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. 12. In the present case it cannot be overlooked that the accused is alleged to have been engaged in smuggling activity and the information as to his antecedents and his station in life do not rule out the possibility of his being not available for trial and repeating the activity, if bailed out. In the facts and circumstances of the case the applicant does not deserve to be bailed out. 13. Reliance on Fouji Ram (supra) is totally misconceived. The learned single Judge of Punjab and Haryana High Court observed that in view of the seriousness of the offence which the legislature has viewed by the enactment of N.D.P.S.A. the matter of bail cannot be treated casually or the offenders cannot be released on bail on small amounts of bonds. There the learned Judge did not accede with the prayer for the grant of bail but only directed expeditious commitment and trial thereafter, I may observe that there also part of sentence -- "Accused can be released on bail on suitable heavy bond" occurring in the head-note does not correctly reflect the ratio of the decision. 14. The application is rejected.