M.K. Hanjura ORDER
M.K. Hanjura, J.
1. On 19.01.2018, a police patrol party stopped an Auto (Load Carrier) bearing Registration No. JK05E-8065, which was on way to Srinagar. Besides the auto driver, three passengers, named Waheed Ahmad Nadroo S/o. Gh. Mohd. Manzoor Ahmad Nadroo S/o. Ab. Aziz R's/o Sher Colony Sopore and Mudasir Ahmad Tantray S/o. Basher Ahmad Tantry R/o Rafi Abad Sopore, were travelling in the said auto. The auto driver disclosed his name as Mehraf-ud-Din Nadroo S/o. Ab. Majeed Nadroo R/o Sher Colony Sopore. During the search of said auto, two bags containing 30 Kgs of poppy straw were recovered. During the preliminary investigation of the case, it came to the fore that all the accused had obtained the poppy straw through illegal means for sale on higher prices to the customers and, therefore offences under Section 15/18 NDPS Act, were found to have been committed by the accused and, accordingly, a case bearing FIR No. 17/2018 was registered against them for the commission of the aforesaid offences at police post, Palhallan, with which the investigation ensued. The samples were taken which were sent to J&K Forensic Science Laboratory, Srinagar, for examination and analysis. The statements of the witnesses conversant with the facts of the case were recorded and the site plan was also prepared. The accused were arrested on 19.01.2018. On the completion of the investigation of the case, a charge sheet in terms of Section 173 Cr. PC was laid against the accused/applicants before the Court of the learned Sessions Judge, Baramulla.
2. The applicants filed an application for the grant of bail in their favour in the FIR aforesaid before the Court of the learned Additional Sessions Judge, Baramulla, which came to be rejected by an order dated 17.04.2018. Aggrieved by this order, the applicants filed another application before this Court for the grant of bail in their favour inter-alia, on the grounds, that the charge-sheet has been laid against them before the competent court, wherein the police authorities have concluded that they are involved in the commission of offences U/s 8/15 NDPS Act. The applicants have further stated that they have been falsely implicated in the case. The mandatory provision of the NDPS Act have been violated in the case with impunity and, therefore, the detention of the applicants is illegal 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. The applicants have further contended that they have been in the custody for the last more than five months by now and their continued detention has hampered them from proving their innocence. A small quantity of Narcotics has been recovered from their possession. They will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on them, in case they are admitted to bail. In the premises, the applicants have urged that they be admitted to bail for the commission of the aforesaid offences.
3. The respondents have resisted and controverted the application of the applicants chiefly on the grounds that poppy Straw was recovered from the possession of the applicants. The applicants have 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 applicants 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.
4. Heard and considered.
5. Risking repetition, what requires to be repeated and reiterated here is that the learned Additional Sessions Judge, Baramulla, has rejected the bail application of the applicants. 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 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 from 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. 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."
6. Taking a cue from the law laid down above, the High Court of Bombay in the Judgement reported in Crimes Volume 3 1987 page 363, Para No. 7 of which is germane to the issue has 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. 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)."
7. Looking at the order of the Court of the learned Additional Sessions Judge, Baramulla, whereby the application of the applicants for the grant of bail in their favour has been rejected, the learned Additional Sessions Judge has stated in the order that 30 Kgs of poppy straw were recovered from the applicants. The Learned Judge has held that even if the contraband seized from the accused does not fall within the scales of the commercial quantity, still the court is required to see whether it would be in the interest of justice to allow the accused to be admitted to bail under the provisions of 497 Cr. PC. The Learned Judge has also stated that drug peddling in the state has taken the shape of trade and the people involved in such type of nefarious crimes appear to be under the notion that they can beat the law and continue to spoil the society by their evil intentions. To nip this evil, the duty of the responsible citizens of the society become more pronounced. The learned trial court has proceeded to state in the order that the Court is cognizant of the fact that the quantity recovered from the accused is an intermediate one but its horrendous effects on the health of the gullible individuals who are lured and entrapped in this quagmire make one to cry his heart out and, accordingly, the learned Judge concluded that the accused is not entitled to bail.
8. What gets revealed from the order of the trial court is that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity but it is an intermediary one and, therefore, the application of the applicants 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. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.
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. 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.
11. Testing at 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 applicants. The maxim of the law of bails which has its application to the case on hand where the quantity of narcotics recovered from the applicants falls within the scales of an intermediary quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is "bail and not jail".
12. 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 applicants have been languishing in the jail for the last more than five months by now. The accused 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 gets swayed by sentiments. Temper and passion have no role to play in exercising the discretion for the grant of bail.
13. In view of the preceding analysis, the applicants are admitted to bail, in case they furnish a personal bond to the tune of Rs. 50,000/- each with a surety of the like amount each to the satisfaction of the learned Court below on the following terms and conditions:-
(i) That they shall present themselves before the Court, as and when asked to do so.
(ii) That they shall not leave the territorial limits of the jurisdiction of the trial Court without seeking permission.
(iii) That they shall not tamper or intimidate the prosecution witnesses.
14. A copy of this order shall be sent to the Trial Court with utmost dispatch.
15. The bail application of the applicants is, accordingly, disposed of, along with connected MP(s).
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