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Mehraj-ud-Din Nadroo and Ors. Vs. State of J&K - (High Court of Jammu and Kashmir) (07 Jul 2018)

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 Applicants filed an application for the grant of bail in their favour in the FIR before the Court of the learned Additional Sessions Judge, which came to be rejected. Aggrieved by present order, the Applicants filed another application before present Court for the grant of bail in their favour 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 under Section 8/15 of NDPS Act. The Applicants have further stated that, they have been falsely implicated in the case. The mandatory provision of the Narcotic Drugs and Psychotropic Substances Act, 1985 (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 question, that arises for consideration at first is whether a successive application for bail will or will not lie before present Court.

As per the order of the trial Court, 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 Section 497 of Code of Criminal Procedure, 1973 (CrPC). 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 of Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.

The settled position of law as evolved by the Supreme Court 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.

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.

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".

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.

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 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.


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