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Usman Ahmed vs Union Territory Of J&K And Another - (High Court of Jammu and Kashmir) (09 Dec 2020)

If an earlier application was rejected by a lower Court, the upper Court can always entertain the successive bail application



In present case, FIR for offences under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) came to be registered by the Police on the basis of an information received from the reliable sources to the effect that, Petitioner herein was in possession of charas for its illicit trade. During investigation of the case, 183 gms of charas was recovered from the possession of the Petitioner. Its sample was taken and sent to the FSL for chemical examination. Upon receipt of the report of FSL and completion of investigation, offences under Sections 8/20 of NDPS Act were found established against the Petitioner and challan was filed against him.

The Petitioner had filed an application for grant of bail in his favour in the aforesaid FIR before the Court of Principal Sessions Judge, and the same was rejected by the Court vide order. 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 contraband allegedly shown to be recovered from the possession of the Petitioner is an intermediate quantity, as such, the rigor of Section 37 of NDPS Act will not apply to the present case; that the Petitioner has been falsely implicated in the present case. The question that arises for consideration is whether or not successive bail applications will lie before this Court.

If an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. The rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 of Code of Criminal Procedure, 1973 (CrPC) on the same facts and for the same offence.

There is no dispute to the fact that, the quantity of contraband recovered from the possession of the Petitioner does not fall within the parameters of commercial quantity and that the same is an intermediary one. The rigor of Section 37 of NDPS Act, therefore, is not attracted to the instant case. The bail petition of the Petitioner is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of CrPC.

The observation of learned trial Court while rejecting the bail application of the Petitioner that, the offence alleged to have been committed by the petitioner is serious in nature and the same affects 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 him. 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 has been arrested on 26th November, 2019 and since then, he is in custody and his further incarceration will be nothing but imposition of punishment without trial of the case. The Respondents have 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. It is not the case of the Respondents that any further recovery is to be effected from the Petitioner. The discretion regarding grant or refusal of bail cannot be exercised against the Petitioner. The petition is allowed and the petitioner is admitted to bail subject to the conditions.


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