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2020 DIGILAW 540 (JK)

Paramjeet Singh v. UT of J&K

2020-10-16

JAVED IQBAL WANI

body2020
Order Javed Iqbal Wani, J.—According to the prosecution version on 07-02-2020, upon receiving an information in Police Station, Banihal through some reliable source that a truck bearing registration No. PB05AL-7643 driven by one person Paramjeet Singh S/o Balkar Singh R/o Mamroot, Tehsil & District Ferozpur, Punjab is carrying illegally banned Poppy Straw like substance while coming from Kashmir to Jammu. Upon receiving the said information and registration of case in Police Station, Banihal, a naka is said to have been laid down at Chakori-Nallah NHW-44 and on arrival of the aforesaid truck at naka same was stopped and after giving a notice by the Investigation Officer u/s 50 NDPS Act, the person of the driver named above was searched however, nothing objectionable recovered, but upon searching of the truck on spot after permission from PMIC, Banihal 40 kgs of Poppy straw like substance came to be recovered from the tool box of the truck where upon 500/500 grams of the substance taken as samples were sent for FSL. The truck in question is said to have been also seized and after completing the legal formalities by the Investigation Officer, a case under Section 08/15 of NDPS Act is said to have been registered and upon completion of investigation charge sheet No. 16/2020 is stated to have been filed on 23-06-2020 before the Court of Sessions Judge, Ramban. 2. The petitioner/applicant herein, in the instant application states to have earlier filed a bail application before the court of Principal Sessions Judge, Ramban being file No. 50/Bail on 09-06-2020 seeking grant of default bail on the premise that the petitioner/applicant is entitled to bail in view of the fact that the petitioner/applicant came to be arrested and sent into custody by Police on 07-02-2020 and that the respondents/non-applicants filed charge sheet after the stipulated period and is therefore, entitled to default bail u/s 167 (2) Cr. PC as a matter of right. According to the petitioner/applicant the said bail application however, came to be dismissed by the trial court on 24-06-2020 after the filing of the challan which had been filed on 23-06-2020, as such, there was no reason and occasion for the trial court to dismiss the bail application. PC as a matter of right. According to the petitioner/applicant the said bail application however, came to be dismissed by the trial court on 24-06-2020 after the filing of the challan which had been filed on 23-06-2020, as such, there was no reason and occasion for the trial court to dismiss the bail application. It is being further stated that the petitioner is under in incarceration since 05-04-2020 and that bail cannot be with held as a means of punishment also in view of the fact that there is a grave threat to the life of the petitioner/applicant on account of outbreak of Covid-19 while being lodged in jail. 3. Learned counsel for the petitioner/applicant while reiterating the grounds urged in the application argued that the alleged substance recovered admittedly is of an intermediate quantity and that the rigor of section 37 of NDPS Act does not apply to the case. Learned counsel would further submit that the petitioner/applicant is otherwise entitled to default bail, in that, the charge sheet came to be filed by the respondents/non-applicants after period stipulated under law. 4. Per contra respondents/non-applicants in the objections filed in opposition to the bail application have resisted and controverted the contentions raised and grounds urged by the petitioner/applicant on the ground that the substance admittedly is recovered from the truck of the petitioner/applicant and that the petitioner/applicant, as such, is involved in the commission of a heinous offence having huge impact on the lives of the young generation. The respondents thus seek dismissal of the application. 5. Heard considered and perused the record. 6. Having regard to the provisions of Section 37 of NDPS Act, same is applicable for commission of offences u/s 19, 24 and 27A only when a commercial quantity of a drug or substance is recovered. Section 37 supra forbids release on bail of a person who is found in possession of commercial quantity of drug or substance unless the prosecution is given an opportunity to oppose the bail application and the court finds that the accused is not prima facie involved in the commission of offences. The aforesaid rider is in addition to the restrictions imposed by Section 497 Cr. PC. 7. The aforesaid rider is in addition to the restrictions imposed by Section 497 Cr. PC. 7. Perusal of the order of the trial court as also the objections filed by the respondents/non-applicants reveal that admittedly an inter-mediate quantity of the substance has been recovered from the truck of the petitioner/applicant, as such, the rigor of Section 37 supra admittedly is not applicable to the case of the petitioner. Further the respondents in their objections nowhere contend that the petitioner is a habitual offender or else is having any criminal history. 8. The settled position of law as evolved by a long line of decisions of the Apex court on the subject relating to the grant of bail is that there is no straight jacket formally or settled rules for the use of discretion but at the time of deciding the question of “Bail or Jail” in non-bailable offences, court has to utilize its judicial discretion not only as per the settled law but also according to the principles laid down by Cr. PC and judicial precedents. Reference in this regard is made to the Apex court Judgment in case titled as “Data Ram Singh v/s State of Uttar Pradesh & Ors” reported in 2018 (3) SCC page 22, wherein at Paras 1, 2, 4 and 5 following is noticed. 1. “A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accuse person to police custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons. 4. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah vs. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as a punishment. Reference was also made to Emperor vs. H. L. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.” 9. The object of bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. The petitioner/applicant has been in custody since 07-02-2020 and his prolonged incarceration admittedly exposes him to a grave threat to his life on account of pandemic Covid-19 in the jail. The object of bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. The petitioner/applicant has been in custody since 07-02-2020 and his prolonged incarceration admittedly exposes him to a grave threat to his life on account of pandemic Covid-19 in the jail. Thus, having regard to the aforesaid facts and circumstances coupled with the legal position and preposition laid down by the Apex court in the Judgment supra, petitioner/applicant is held entitled to grant of bail. 10. In view of the proceeding analysis, the application is allowed and the petitioner/applicant is granted bail, subject to the following conditions: 1. Furnishing of personal bond to the tune of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the trial court. 2. To surrender and deposit Passport with the non-applicants within seven days from the date of passing of this order. 3. Not to leave the territorial jurisdiction of this Court without the permission of the trial court. 4. Not to influence directly or indirectly the prosecution witnesses or tamper with the prosecution evidence by any manner mode or method. 5. To face and take the trial before the trial court without any fail. Disposed of.