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2017 DIGILAW 421 (JK)

Mohd. Hussain Wani v. State of J&K

2017-07-25

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : 1. This is an application for grant of bail in FIR No.154/2017 under Sections 8/21/22 of the NDPS Act (hereinafter called the Act). The petitioner is stated to have been arrested along with others on 19.05.2017 and 18 gms of Heroin was allegedly recovered from his possession. 2. An application for bail filed earlier by the applicant before the Court of Special Judge, Kathua has been rejected vide order dated 26.05.2017 on the ground that the release of the petitioner after his arrest would encourage the people dealing in narcotics business, which would in turn severely affect the society in general and the life and career of youth, whom such traffickers try to target in particular. 3. Further, the Court below appears to have come to a conclusion that since investigation had yet not been concluded and charge-sheet had not been filed, it would not be proper to release the petitioners on bail at that stage. 4. It is in these circumstances that the present application for bail has been filed. It was urged that the quantity of Heroin alleged to have been recovered from the possession from the petitioner was an intermediate quantity and, therefore, did not fall within the rigours’ of Section 37 of the Act. It was urged that Section 37(1)(b) of the Act was applicable only to offences under Sections19, 24 & 27-A as well as offences involving commercial quantities. 5. By virtue of order dated 01.06.2017, learned Additional Advocate General representing the State was directed to file objections to the application but the same was not filed. Vide order dated 04.07.2017, he was yet again directed to file the latest status report on or before 07.07.2017, which order was also not complied with. 6. As per the table prescribed by the Government, in exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the Act, commercial quantity for Heroin has been fixed at 250 gms, while the small quantity has been fixed at 5 gms. The quantity of Heroin allegedly recovered from the applicant, which was at 18 gms would, therefore, fall in the intermediate category. 7. It is now well settled law that bail cannot be refused as a matter of punishment. The quantity of Heroin allegedly recovered from the applicant, which was at 18 gms would, therefore, fall in the intermediate category. 7. It is now well settled law that bail cannot be refused as a matter of punishment. In Sanjay Chandra V/s CBI, 2012(1) SCC 40 , the Apex Court reiterated the principle of bail, not jail by placing reliance on an earlier judgment in the case of State of Rajasthan V/s Balchand, (1977) 4 SCC 308 , which held that: “The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice of thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.” 8. In Sanjay Chandra’s case supra, their Lordships held thus: “22. 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. 23. 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 to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.” 9. Accordingly, it is ordered that the petitioner be released on bail on his executing a bond in the sum of Rs. Accordingly, it is ordered that the petitioner be released on bail on his executing a bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the Sessions Judge, Kathua, subject to the following conditions:- (i). That the petitioner shall remain present before the Trial Court on each and every date of hearing; (ii). That the petitioner shall not, in any manner, intimidate any witness or tamper with the prosecution evidence. 10. Bail application is, accordingly, disposed of.