JUDGMENT : M.K. Hanjura, J. 1. On 22-02-2018, the applicant came to be apprehended by the authorities of Police Station, Kulgam, in the wake of the recovery of 12 kgs of Poppy Straw from his possession, as a sequel to which, a case bearing F.I.R No. 44/2018, came to be registered against him for the commission of the offences punishable u/s. 8/25 NDPS Act. 2. The applicant-petitioner filed an application for the grant of bail in his favour in the aforesaid FIR before the Court of the learned Principal District & Sessions Judge, Kulgam, pleading therein that he is innocent. He has been falsely implicated in the case by the Police authorities. He has also stated that the seized contraband does not fall within the scales of the commercial quantity and, as such, the rigor of section 37 of the NDPS Act is not attracted. On these set of pleadings, the applicant implored that he be enlarged on bail. However, the learned Principal District & Sessions Judge, Kulgam, rejected his application vide an order dated 06-07-2018. 3. Aggrieved by the order of the learned Principal District & Sessions Judge, Kulgam, the applicant has filed the instant application before this Court for the grant of bail in his favour, on the grounds, inter-alia, that the charge-sheet has been laid against him before the competent Court, wherein the police authorities have contended that he is involved in the commission of offences u/s. 8/15 NDPS Act. The applicant has further stated that he has been falsely implicated in the case. The mandatory provision of the NDPS Act has been violated in the case and, therefore, any further detention of the applicant is illegal, unwarranted and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. He has been in the custody for the last so many months by now and his continued detention has hampered him from proving his innocence. It has also been added that a small quantity of Narcotics has been recovered from him and that he will not tamper with the prosecution evidence and will abide by the conditions, whatsoever, are imposed on him, in case he is admitted to bail. 4. It has also been added that a small quantity of Narcotics has been recovered from him and that he will not tamper with the prosecution evidence and will abide by the conditions, whatsoever, are imposed on him, in case he is admitted to bail. 4. The respondent has resisted and controverted the application of the applicant chiefly on the ground that 12 kgs of 'Poppy straw' were recovered from his possession. He has committed a heinous offence. The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the applicant seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected. 5. Heard and considered. 6. Risking repetition, what requires to be repeated and reiterated here is that the learned Principal District & Sessions Judge, Kulgam, has rejected the application of the applicant seeking his release on bail, and the question, therefore, that arises for consideration, at first, is whether a successive application for bail will, or will not, lie before this court. The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh particularly so when the order of the rejection of the bail is bad and perverse on the face of it. Resort can in this behalf be had to the law laid down in AIR 1978 SC page 179 wherein it has been held as under: "17. It is significant to note that under S. 397, Cr. PC, 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 the revision when the authorities have concurrent powers. This is the position explicitly made clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S. 435 (4), Cr. PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under Section 435 (1) Cr. PC. of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's 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. PC. to cancel bail 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. PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary." 7. Taking a cue from the law laid down above, the High Court of Bombay in the Judgment reported in Crimes Volume 3 1987 page 363, (Para No. 7 of which is germane to the issue), held as follows: "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 bail made under Section 439 Cr. PC. The power given by Section 439 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 jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr. PC. 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. PC. 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 fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)." 8. Looking at the order of the Court of the learned Principal District & Sessions Judge, Kulgam whereby the application of the applicant for the grant of bail has been rejected, the learned Judge has held that the offence committed by the accused is serious as well as heinous. The accused is involved in the trade of contraband 'Poppy straw', which is hazardous to the health of the public at large. The offences under the NDPS Act are increasing at an alarming pace and, as such, these need to be curbed before the menace brings within its fold a major section of the society. The organized activities of the persons involved in the smuggling of narcotic drugs and psychotropic substances into the country and illegal trafficking in such drugs and substances have led to drug addiction among the youth and it has badly affected them. It is further observed that in the recent years this plague has increased alarmingly. It is a situation of serious concern and, therefore, the applicant does not deserve any concession of bail at this stage. 9. It is further observed that in the recent years this plague has increased alarmingly. It is a situation of serious concern and, therefore, the applicant does not deserve any concession of bail at this stage. 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 use of discretion but at the time of deciding the question of 'bail or jail' in non-bailable offences, the 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 principles 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, but the learned trial Court appears to have applied it in the reverse. 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 unconvicted 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 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 knight-errant roaming at will in pursuit of his own ideal of 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 often times caprice, in the worst, it is every vice, folly and passion to which human nature is liable." 11. Regard being had to the fact that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial category but it is an intermediary one, therefore, on the face of such an eventuality, the application of the applicant had to be considered under the provisions of 497 Cr. PC. It is only on the application of the rigor of Section 37 of NDPS Act to a given case that bail can be withheld. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 Cr. PC. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case. 12. To categorize the materials, in terms of quantity as small, medium and commercial, is to allow escape routes for those to whom the rigor of section 37 NDPS Act does not apply. Had the intention of the legislators been to treat those who are found to be in possession of the small and medium quantity of the drugs and Narcotic substances on par with those from whom commercial quantity of such substances is recovered, it could not have pierced and scaled it in different scales and categories. The conflict between the human tendencies and the rules of society is an eternal one which cannot ever be solved or ended to the entire satisfaction of idealistic puritans. World of human society will always remain imperfect. It creates a false ethical self-importance on the part of the Courts who sit in judgment to decide or determine such cases not in accordance with the law but by sentimental proverbs. 13. Testing the instant application from the above perspective, it requires to be recapitulated that the rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that the case of the applicants does not fall within the parameters of the offences that are punishable with death or imprisonment of life. Therefore, there appears to be no reasonable ground for declining bail to the applicant. The maxim of the law of bails, which has its application to the case on hand where the quantity of contraband recovered from the applicant falls within the scales of an intermediary one, for which the punishment provided is upto 10 years and a fine of rupees one lac, is, "bail and not jail". 14. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty, has its application to the facts of the instant case in all the fours. 14. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty, has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicant has been languishing in the jail for so many months by now. He has to prepare for his defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot get swayed by sentiments. Temper and passion have no role to play in exercising the discretion for the grant of bail. 15. In view of the preceding analysis, the applicant is admitted to bail, in case he furnishes a personal bond to the tune of Rs. 50,000/- with a surety of the like amount to the satisfaction of the Court below on the following terms and conditions: (i) That he shall present himself before the Court, as and when asked to do so. (ii) That he shall not leave the territorial limits of the jurisdiction of the trial Court without seeking permission. (iii) That he shall not tamper or intimidate the prosecution witnesses. 16. A copy of this order shall be sent to the Trial Court with utmost dispatch. 17. The bail application of the applicant is, accordingly, disposed of along with connected MP(s).