Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 310 (HP)

STATE OF H. P. v. JOGINDER SINGH

2000-12-05

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J. :- This petition has been preferred under Section 439(2) of the code of Criminal Procedure (hereafter referred to as "the Code") against the order dated 17.7.2000 passed by the learned Additional Chief Judicial Magistrate, Una, exercising the powers of Sessions Judge, Una, in Bail Application No. 244/2000 in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as "the Act") and it has been prayed that the said order being illegal and perverse on facts as well as in law may be set aside. 2. It is not in dispute that the respondent accused (hereafter referred to as "the accused") is facing trial in the court of learned Sessions Judge, Una for illicit possession of 12 grams of charas and a charge under Section 20 of the Act had been framed against him on 21.6.2000. The accused, however, moved a bail application on 26.6.2000 which was entertained and allowed by the learned Additional Chief Judicial Magistrate, Una while exercising the powers of the Sessions Judge in the absence of the Sessions Judge. Feeling aggrieved, the State has preferred the present petition for cancellation of bail. 3. I have heard the learned Assistant Advocate General for the petitioner and the learned counsel for the accused and have also perused the material placed before me. 4. The learned Additional Chief Judicial magistrate has allowed bail to the accused on the ground that though 12 grams of charas has been recovered from the possession of the accused but so recovered substance contains only 33.41% resin which in fact works out to 4 grams as per the percentage of the resin and the definition of charas. Thus, having come to the conclusion that the 12 grams of substance recovered from the accused contains only four grams of resin, the court below held that, the charas recovered from the accused is of "small quantity" and, therefore, in view of the provisions contained in Section 27 of the Act, the bar created by Section 37 of the is small one, therefore, the case falls within the provisions of Section 27 of the Act and the bar created by Section 37 of the Act regarding grant of bail does not apply to the present case. 7. 7. Section 27 of the Act reads as under: "Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance:- Whoever, in contravention of any provision of this Act, or any rule or order made or permit issued there under, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in the Chapter, be punishable, - (a) where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government, by notification in the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and (b) where the narcotic: drug or psychotropic substance possessed or consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months or-with fine or with both. Explanation.- (1) For the purposes of this section "small quantity" means such quantity as may be specified by the Act does not apply to the present case. The other considerations which have weighed with the learned Additional chief Judicial Magistrate in granting the bail to the accused are that the investigation in the case is complete, the accused had been arrested on 18.3.2000 and thereafter is in custody, he is a local resident of Una District and is not a previous convict and that there is no allegation that if released on bail, he would flee from justice or tamper with the prosecution evidence. It has also been observed by the Court below that the accused is a poor person and only bread earner of his family; therefore, he is entitled to be released on bail and was accordingly released on bail. 5. It has also been observed by the Court below that the accused is a poor person and only bread earner of his family; therefore, he is entitled to be released on bail and was accordingly released on bail. 5. Be it stated at the very outset that once the Court of competent jurisdiction has framed a charge against the accused for being in illicit possession of 12 grams of charas, the learned Additional Chief Judicial Magistrate ought not to have entered into the discussion as to whether the accused was found in possession of 12 grams of charas or it works out to 4 grams only, therefore, the accused should be treated in possession of four grams of charas only. Such discussion and conclusion apparently has a direct bearing on the appreciation of evidence which is yet to be recorded/concluded against the accused. 6. It has been wrongly concluded by the learned Additional Chief Judicial Magistrate that the quantity of charas recovered from the accused Central Government by notification in the Official Gazette. (2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person." 8. It is evident from a bare reading of the aforesaid provisions, that these will apply only to a case where it is at least prima facie found that the permissible quantity of the contraband recovered from the accused was intended for his personal consumption and not for sale or distribution. Sub section (2) of Section 27 of the Act makes it crystal clear that the burden of proving that such permissible quantity of the contraband was intended for personal consumption of the person who has been found in possession thereof and not for sale or distribution, shall lie on such person. It was not the case of the accused before the learned Additional Chief Judicial Magistrate nor it is before this court that the charas allegedly recovered from him was for his personal use and not for sale or distribution. Thus, the provisions of Section 27 could not have been pressed into service to grant bail to the accused. 9. It was not the case of the accused before the learned Additional Chief Judicial Magistrate nor it is before this court that the charas allegedly recovered from him was for his personal use and not for sale or distribution. Thus, the provisions of Section 27 could not have been pressed into service to grant bail to the accused. 9. In view of the provisions of Section 37 of the Act, a person accused of being in possession of a narcotic drug or a psychotropic substance, can be released on bail when the following conditions are satisfied: (i) If such person is accused of an offence punishable for a term of imprisonment of less than 5 years; or (ii) the public prosecutor has the opportunity to oppose the bail application and the Court is satisfied (a) that there are reasonable grounds for believing that the accused is not guilty of an offence punishable for a term of imprisonment of 5 years or more under the Act; and (b) that he is likely to commit any offence while on bail. 10. As already seen hereinabove, the case against the accused is not shown to be one within the provisions of Section 27 of the Act, therefore, the offence alleged to have been committed by him is not punishable for a term of imprisonment of less than 5 years. Thus, condition (i) supra does not apply to the present case. 11. The Public Prosecutor though had the opportunity to oppose the bail application before the learned Additional Chief Judicial Magistrate, but in his order granting bail to the accused, the learned Chief Judicial Magistrate has nowhere come to the conclusion that he was satisfied that there are reasonable grounds to believe that the accused is not likely to commit any offence, if released on bail. In view of the fact that charge has been framed against the accused under Section 20 of the Act, it could not be and cannot be held at this stage that the accused is not guilty of the offence complained against. 12. The other considerations which have weighed with the learned Additional Chief Judicial Magistrate in granting the bail are immaterial in view of the provisions contained in Section 37 of the Act. Thus, the order granting bail to the accused is illegal and perverse. 13. 12. The other considerations which have weighed with the learned Additional Chief Judicial Magistrate in granting the bail are immaterial in view of the provisions contained in Section 37 of the Act. Thus, the order granting bail to the accused is illegal and perverse. 13. It was contended by the learned counsel for the accused that the bail once granted should not be cancelled unless the prosecution shows that the accused had, in any manner, misused the liberty granted to him. There is no allegation that the accused is likely to abscond or that he is tampering with the prosecution evidence in any manner. The trial is likely to be concluded shortly and no useful purpose is going to be served by cancellation of the bail. In support of his conteniton, the learned counsel has relied on State of Orissa v. Jagannath Patel & Ann 1992 Cr. L.J. 1818; Aslam Babalal Desai v. State of Maharashtra 1992 Cri.LJ. 3712; State and others v. E. Veeramani 1995Cri.L.J.184 and Ram Naresh Singh v. State ofMadhya Pradesh 1995 Cri. L.J. 2523. 14. In Jagannath Patels case supra, a case under Sections 306/498-A IPC and Section 4 of the Dowry Prohibition Act, 1961, the High Court of Qrissa refused to cancel the bail on the ground that there was no material to conclude that the accused therein had been misusing their liberty while on bail or there was any chance of their tampering with the evidence and only directed expeditious disposal of the case. However, it was observed therein, referring to earlier decision of a Division Bench of the same High court, that unrestricted power is conferred on the High Court and the Court of Sessions in the matter of cancellation of bail which, no doubt, is to be exercised with due care and circumspection. Bail granted illegally and/or improperly, by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under Section 439(2) of the code even if there is no additional circumstance against the accused appearing on record after grant of bail. These observations are more akin to the facts and circumstances of the present case than the order refusing to cancel the bail. 15. In Aslam Babalal Desais (supra), the Apex Court in a case under Sections 147, 148, 302 and 323 read with Section 149 IPC refused to cancel bail already granted. These observations are more akin to the facts and circumstances of the present case than the order refusing to cancel the bail. 15. In Aslam Babalal Desais (supra), the Apex Court in a case under Sections 147, 148, 302 and 323 read with Section 149 IPC refused to cancel bail already granted. The queston before the Honble Supreme court therein was whether bail once granted under the proviso to sub section (2) of Section 167 of the code for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation of the charge sheet at any time thereafter? The question was answered by the Apex Court in the negative, by observing that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge sheet. Thus, the facts and circumstances of that case were entirely different than those of the present case and the law as above, has no application to the facts and circumstances of this case. 16. In E. Veeramanis case supra, the Madras High court had observed that bail once granted cannot be cancelled on the grounds like suppression of pendency of earlier bail application; past criminal record of the accused or where the order granting the bail is neither arbitrary nor perverse. However, in the said case the orders granting bail to the accused persons therein were set aside as such orders were passed in a case where the charge sheets against the accused persons were not submitted to the competent court within the prescribed period under Section 167 of the code but the bail applications were filed after the presentation of the charge sheets. Therefore, grant or refusal of the bail was required to be considered on merit and was not so considered by the Court granting bail. On the contrary, orders granting bail were passed keeping in view the provisions of Section 167(2) of the code only. Thus, the facts and circumstances of that case were entirely different and the ratio therein has no application to the facts and circumstances of the present case. 17. On the contrary, orders granting bail were passed keeping in view the provisions of Section 167(2) of the code only. Thus, the facts and circumstances of that case were entirely different and the ratio therein has no application to the facts and circumstances of the present case. 17. In Ram Naresh Singhs case (supra), the High Court of Madhya Pradesh refused to cancel the bail already granted in a case under Sections 307/34 IPC observing that it is settled position that the liberty once granted to the accused cannot be curtailed by cancellation of bail unless certain conditions like misuse of liberty by the accused; interference with the course of investigation; attempts to tamper with the evidence/witnesses; threatening witnesses or indulging in similar activities which would tamper smooth investigation; attempting to make himself scarce by the accused by going underground or attempting to place himself beyond the reach of his surety, are satisfied and none of such conditions was found satisfied in the said case. 18. It may be pointed out here that the case in hand is not the one wherein the provisions of Sections 437 or 439 Cr. P.C. in the matter of granting bail will apply without any restrictions. The grant of bail in a case, as in hand, is subject to the provisions of Section 37 of the Act and is not permissible unless the aforesaid conditions are satisfied and the requisite conditions justifying grant of bail in the case in hand are not satisfied. Therefore, the impugned order is illegal, perverse and came into being as a result of wrong exercise of jurisdiction. 19. Be it stated that possession, distribution, sale and consumption of narcotic drugs and psychotropic substances is a social evil and to curb it, the legislature has passed the Narcotic Drugs and Psychotropic Substances Act and has placed restrictions on grant of bail to the persons accused of the commission of offences punishable under the Act. Therefore, objective assessment of the provisions of the Act should be the obligaton of the court and its approach in the matter should be to remedy the wrong intended to be curbed by law. Sentimentalism though has no place in judicial process but sensitivity to social problems and to the mission of law in that regard is a virtue of the said process. Sentimentalism though has no place in judicial process but sensitivity to social problems and to the mission of law in that regard is a virtue of the said process. In any case, the law has to be applied as it is and not by curtailing its rigors on irrelevant considerations. I am, therefore, of the view that the bail granted to the accused by the learned Additional Chief Judicial magistrate vide order dated 17.7.2000 being illegal, perverse and a wrong exercise of the jurisdiction deserves to be cancelled. 20. As a result, this petition is allowed and the bail granted by the learned Additional Chief Judicial Magistrate to the accused vide order dated 17.7.2000 in FIR No. 40/2000 under Section 20 of the Narcotic Drugs & Psychotropic Substances Act registered at Police Station, Amb and presently pending trial before the learned Sessions Judge, Una, is hereby cancelled. The accused is directed to surrender in the Court of the learned Sessions Judge, Una by 26.12.2000. On his appearance before the learned Sessions Judge, the bail bonds furnished by the accused shall stand cancelled and he shall be committed to judicial custody pending trial of the case.