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2022 DIGILAW 241 (JK)

Gh. Jeelani Bhat v. UT of J&K

2022-05-12

SANJAY DHAR

body2022
JUDGMENT : 1. The petitioner has invoked jurisdiction of this Court under Section 439 r/w Section 397 of the Cr.P.C., seeking bail in a case arising out of FIR No. 02 of 2022 for offences under Sections 8/20, 29 of the Narcotic Drugs and Psychotropic Substances, Act, (for short 'the NDPS Act') registered with Police Station, Ganderbal. 2. As per the prosecution case, on 10.01.2022, Police Station Ganderbal received a written docket from Police Post Nagbal to the effect that while performing checking at Bakura crossing, the Police party saw two persons coming from Bakura to Nagbal. The said persons, on seeing the police party, attempted to flee from the spot but they were apprehended. During preliminary questioning, they revealed their names as Ghulam Jeelani Bhat S/o Abdul Rashid Bhat R/o Bakura and Ghulam Mohammad Wani, S/o Assadullah Wani, R/o Lider-Mad Pulwama. A search of the said persons was carried out and charas like substance was recovered from their possession contained in Maize covers (5 in number). Out of these, three Maize covers recovered from the petitioner herein. The quantity of contraband recovered from the petitioner was found to be 80 grams whereas the quantity of charas recovered from the co-accused was found to be 70 grams. Consequently, FIR was filed under Sections 8/20 and 29 of NDPS Act in Police Station, Ganderbal. The recovered substance was sealed and sent to FSL, Srinagar, by the Executive Magistrate and the FSL report is pending. The challan was produced before the Sessions Court, Ganderbal on 06.04.2022. It has been stated by the respondents in their objections/Response that as and when the FSL report is made available, a supplementary challan will be produced before the Sessions Court. 3. It appears that the petitioner had filed an application for grant of bail in his favour in the aforesaid FIR before the Court of Principal Sessions Judge, Ganderbal. The said bail petition was heard along with a batch of bail petitions pertaining to different persons relating to different FIRs for offences under NDPS Act and the same was rejected by the said Court vide order dated 26.02.2022. 4. The said bail petition was heard along with a batch of bail petitions pertaining to different persons relating to different FIRs for offences under NDPS Act and the same was rejected by the said Court vide order dated 26.02.2022. 4. Being aggrieved of the said order, the petitioner has filed the instant petition before this Court for grant of bail in his favour on the grounds that the quantity of contraband that is alleged to have been recovered from his possession and the other accused person, even if taken together, do not fall in the category of 'commercial quantity' as defined in the Act and hence the rigor of Section 37 NDPS Act would not be applicable to the case. It is further contended that the contraband recovered has been weighed by the police along with the maize husk which has resulted in the contraband falling in the category of 'intermediate quantity' and if the weight of maize husk is excluded, the contraband recovered from the two accused persons including the petitioner herein would collectively fall within the category of 'small quantity'. It is further contended that being in possession of 'small quantity' would make the offence bailable in nature but in order to deprive the petitioner of the concession of bail, the weight of the maize husk has been included in the weight to bring it within 'intermediate quantity'. It is also contended that Section 29 of the NDPS Act, which pertains to punishment for abetment and criminal conspiracy, has been invoked against the petitioner and the co-accused merely to bring the alleged recovery within the parameters of 'intermediate quantity' though there is no material on record to substantiate it. The petitioner also claims to be the sole bread earner of his family and it has been stated that his continuous detention will put his family in great financial distress. 5. The respondent-State has resisted the bail petition by filing objections thereto. In its objections, the respondent-State has contended that the instant bail petition is liable to be dismissed as the petitioner is involved in a heinous offence which is against the society at large and the youth in particular. 5. The respondent-State has resisted the bail petition by filing objections thereto. In its objections, the respondent-State has contended that the instant bail petition is liable to be dismissed as the petitioner is involved in a heinous offence which is against the society at large and the youth in particular. It has been contended that there are reasonable grounds to apprehend that the accused would jump the concessions of bail and flee from J&K and that this Court while considering the bail application on the touchstone of individual liberty must not lose sight of interest of the society. 6. I have heard learned counsel for the parties and perused the material on record. 7. A perusal of the order passed by the learned Principal Sessions Judge reveals that the learned Judge has, while noting that the rigor of Section 37 of the Act is not applicable to the case at hand, has rejected the application by observing that the offences committed by the accused are heinous in nature and if accused/petitioners are released on bail, there will be resentment in the general public. It has been further observed that general public will lose its confidence which it has reposed in the court of law as the offence has been committed against the state and the society. It is pertinent to mention here that the learned Judge has not expressed any opinion as to whether, prima facie, the offence of 'Criminal Conspiracy', as punishable under Section 29 of the Act is made out or not. 8. Without going into the question whether there is any material on record to show that the petitioner and co-accused were part of a criminal conspiracy, even if it is assumed or accepted that there was a criminal conspiracy between the petitioner and the co-accused with respect to commission offences under NDPS Act, the total weight of the contraband allegedly recovered from the accused would not come within the parameters of 'commercial quantity' and, thus, the rigor and stringency of Section 37 of NDPS Act would not be applicable. Since the requirements and requisites of Section 37 do not apply, what has to be seen is if the petitioner is entitled to be released on bail in the background of provisions contained in Section 439 of the Cr.P.C. 9. A coordinate bench of this court has, in the case of Mehraj-ud-Din Nadroo & Ors. Since the requirements and requisites of Section 37 do not apply, what has to be seen is if the petitioner is entitled to be released on bail in the background of provisions contained in Section 439 of the Cr.P.C. 9. A coordinate bench of this court has, in the case of Mehraj-ud-Din Nadroo & Ors. vs. State of J&K (BA No. 74/2018 decided on 07.07.2018), while, dealing with the bail application of an accused, allegedly found in possession of intermediate quantity of contraband substance, observed as under : "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. 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 principle 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. 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 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. 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. 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 oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable." 10. 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 oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable." 10. In the light of the afore-quoted principles, let us now advert to the facts of the instant case. As already noted, the quantity of contraband allegedly recovered from the accused does not fall within the parameters of 'commercial quantity' and the same is intermediary one. The rigor of Section 37 of the NDPS Act, thus, does not come into play. The observation of learned trial court, while rejecting the bail application of the petitioner, that the offences alleged to have been committed by the petitioner are serious in nature and the same affect the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon them. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for more than four months now and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail. 11. Apart from this, the respondent has not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. The investigation of the case is complete and the charge sheet stands filed before the court below. If petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved. 12. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved. 12. For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions : (i) That he shall furnish personal bond in the amount of Rs. 50,000/- with one surety of the like amount to the satisfaction of the learned trial court; (ii) That he shall appear before the learned trial court on each and every date of hearing; (iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court; (iv) That he shall not intimidate or tamper with prosecution witnesses/evidence; (v) That he shall not indulge in similar activities. 13. The bail application shall stand disposed of.