Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 62 (JK)

Tariq Ahmad Dar v. State

2008-03-12

MOHAMMAD YAQOOB MIR

body2008
1. Menace of trade and use of Narcotic drugs and Psychotropic substances has given rise to special piece of legislation, whereunder more stringent punishments have been pre scribed. Discretionary powers exercisable viz-a-viz the connected offenders have been curtailed. Fetters have been imposed on the exercise of discretionary power as ordained by Section- 37 of the NDPS Act. What emerges there from is that the matters pertaining to the commission of offences punishable under the Provisions of NDPS Act are to be dealt with in the background of the social good. Interests of the society are to be safeguarded against the evil repercussions of the Narcotic drugs. 2. Earlier Section-37 of the NDPS Act took into its sweep all offences punishable under the Act, but now pursuant to amendment operation of Section-37 of the Act has been limited in its operation only to such offences which are punishable under Section-19, Section-24, Section- 27(A) and all offences involving commercial quantity of the Narcotics. The fetters imposed by Section-37 of the Act are applicable only under said position of the case. If the case does not fall within the scope of Section-37, then grantor refusal of the bail has to be considered under Section- 497 of the Cr. P.C. 3. Section-497 Cr.P.C. empowers courts to consider grant or refusal of the bail. As per Sub Section-1 of Section-497 Cr. P.C. a person is not to be released, when reasonable ground exists for believing that he has committed the offence punishable with death or imprisonment for life, whereas in rest of the non bailable offences restriction is not applicable. I have the benefit of going through the Judgment reported in 2005 AIAR (Crl.) page 607, wherein it has been observed: "It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view." For grant or refusal of the bail, discretion vested with the court is to be exercised on sound judicial principles. 4. In this connection it shall be quite relevant to quote from the Judgment reported in AIR 1978 SC page 430. Bail or jail? at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. 4. In this connection it shall be quite relevant to quote from the Judgment reported in AIR 1978 SC page 430. Bail or jail? at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, adhoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glambrize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of `procedure established by law. The last four words of Art. 21 are the life of that human right. " 5. Coming to the case in hand what has happened is that the accused seeker of the bail in connection with case registered as FIR 39/07 Police Station Shopian has been arrested on 2.4.2007 for having committed the offence punishable under Section-15/18 NDPS Act. On behalf of the petitioners/accused, petition for grant of bail has been moved before the court of Learned Session Judge Pulwama, who has declined the grant thereof vide order dated 7.12.2007, opining therein that few witnesses are yet to be recorded. Release of the accused may result in interference with the prosecution witnesses. Learned Judge has also highlighted considered view viz-a-viz well being of the society. 6. As per order of the trial court 20 kilograms of Poppy straw allegedly were found in possession of the accused. It is also mentioned that Section-37 of the Act is not applicable. Release of the accused may result in interference with the prosecution witnesses. Learned Judge has also highlighted considered view viz-a-viz well being of the society. 6. As per order of the trial court 20 kilograms of Poppy straw allegedly were found in possession of the accused. It is also mentioned that Section-37 of the Act is not applicable. It is fact that this bail application has been dealt with, while invoking powers under Section-497 Cr. P.C. The powers are concurrent but that does not mean that once bail plea is rejected by the Subordinate court, High court cannot exercise the powers. This controversy has already been set at rest by the Apex court in the Judgment reported in AIR 1978 SC page 179. 17. It is significant to note that under S.397, Cr. P.C. of the new Code while the High court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under sub-section (3) of that section that when an application under that section has been made by any person to the High court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under S. 435(4), Cr. P.C. of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under Section 435(1), Cr. P.C. of the old Code the High court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High courts jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High court in dealing with an application under S. 439 (2), Cr. P.C to cancel hail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High court has undoubtedly jurisdiction to entertain the application under S. 439(2). Cr. P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to hail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary. 7. Bombay High court following the ratio has also taken the view in the Judgment reported in Crimes Vol. 3 1987 page 363. Cr. P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to hail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary. 7. Bombay High court following the ratio has also taken the view in the Judgment reported in Crimes Vol. 3 1987 page 363. It is quite relevant to quote para-7 of the said Judgment. The above view of the learned Single Judge of the Kerala High court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary hail made under Sections 439 Cr. P.C. The power given by Section 139 to the High court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdictions, but its original special jurisdiction to grant bail This being so, it becomes obvious that although under section 439 Cr. P.C. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High court and the High court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same facts, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singhs case (above)." 8. The prolonged incarceration unless justified cannot be permitted. The accused has admittedly been arrested on 2.4.2007, means the accused are in the Jail for last more than ten months. The detention or custody cannot be by way of punishment. Continuous incarceration in the facts and circumstances of the case may amount to sentencing the accused before conviction. After all in Criminal Jurisprudence the accused is presumed to be innocent until guilt is brought home. This cherished principle cannot be ignored. It is fact that Narcotic drugs have the effect of polluting social environment. Continuous incarceration in the facts and circumstances of the case may amount to sentencing the accused before conviction. After all in Criminal Jurisprudence the accused is presumed to be innocent until guilt is brought home. This cherished principle cannot be ignored. It is fact that Narcotic drugs have the effect of polluting social environment. The offenders are required to be dealt with iron hand i.e. to say if the charge is proved, exemplary punishment can be awarded. While viewing the object of Section- 497 Cr.P.C grant of bail in the given circumstances cannot be withheld especially, when the restraint clause is not applicable. Accused deserve to be admitted to bail. Application as such succeeds. Accused are ordered in be released on furnishing bail to the tune of Rs. 30,000/- each to the satisfaction of Learned Sessions Judge Pulwama and the personal bond of like amount subject to the following conditions: i) that they will ensure their presence before the trial court on each and every date of hearing except for just cause; ii) that they will not in any way tamper with the prosecution evidence; Application is accordingly disposed of Copy of order be send to the Learned trial court for information.