Sanjeev Kumar Saxena vs State Government Of Delhi
2008 Latest Caselaw 1132 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Bail Application No.230/2008

%                                        Date of Decision : July 24, 2008


Sanjeev Kumar Saxena                                        .... Petitioner

                                   Through :   Mr. R. P. Luthra, Advocate


                               VERSUS


State Government of Delhi                                 .... Respondent

                                   Through :   Mr. Sanjay Lao, Advocate


CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.          Whether Reporters of local papers may be
            allowed to see the judgment?

2.          To be referred to the Reporter or not ?             Yes

3.          Whether the judgment should be reported
            in the Digest ?                                     Yes



SUDERSHAN KUMAR MISRA, J: (Oral)

1.     In this case, the petitioner was apprehended carrying Heroin. He

has been charged with a recovery of net quantity of 107 grams of

Diacetylmorphine under Section 21(b) of the NDPS Act. Admittedly, in

this case, Section 37 of the NDPS Act is not attracted. The accused has

been in judicial custody since 13.8.2007. All the witnesses that have

been named by the prosecution are police officials; two of them have

already been examined. As per the status report, the accused is found

to have no previous criminal involvement. The chargesheet has been

filed in the Court.

2.     Mr. Sanjay Lao, appearing for the State, has opposed this petition

on only one ground. For this, he has relied on the decision of a Single


Bail Application No.230/2008                                          Page 1 of 4
 Judge of this Court in Mahesh Pal Singh Vs. State 2006(2) JCC 108

to contend that in such matters, while considering the question of bail,

what must be seen is whether the time spent by the accused in custody

while under trial, bears the same proportion to the maximum

imprisonment awardable to him on conviction as the quantity of

substance recovered bears to the maximum quantity prescribed under

the nomenclature, "intermediate quantity". He points to the fact that in

Mahesh Pal Singh's case, while the quantity of the substance

recovered fell within the classification, "intermediate quantity", the

recovery was about 1/10th of the maximum quantity prescribed

thereunder. Since the maximum punishment that could be meted out

to the petitioner in that case for possession of the "intermediate"

quantity under Section 21(b) of the NDPS Act would be imprisonment for

10 years with fine of Rs.1.00 lakh, consequently, looking at the

proportionality, the Court felt that even if it is assumed that the accused

is to be convicted, he is not likely to be imprisoned for a period longer

than what he has already spent in custody. Therefore he is entitled to

bail. From this Mr. Lao has invited this Court to conclude that since in

this case, 107 gms. of diacetyl morphine has been recovered, which

corresponds to 42.8% of the maximum quantity of diacetyl morphine

which can be classified as an, "intermediate quantity" under the statute,

therefore, the petitioner should not be released on bail until he has

remained in judicial custody for at least the same proportion, i.e., 42.8%

of the maximum imprisonment that could have been awarded for the

offence under Section 21(c) of the NDPS Act, if he were to be convicted.

3.     I do not agree with this proposition. In fact, I do not think that this

is what Mahesh Pal Singh's case decides. In my view, Mahesh Pal

Singh's case lays down no such proposition. A reading of that case




Bail Application No.230/2008                                        Page 2 of 4
 would show that the exercise of proportionality was carried out because,

in that case, the petitioner was being tried for possession of an

intermediate quantity of diacetyl morphine and had already remained in

judicial custody for over four years, while the quantity recovered from

him was alleged to be 25.5 gms. It was in these circumstances that the

Court was persuaded to the view that even if the petitioner in that case

was ultimately convicted, then, looking to the quantity allegedly

recovered, his likely punishment may be less than the time already

spent in jail by the accused. This aspect of the matter along with other

factors persuaded the court to grant bail in that case. But this cannot

give rise to the proposition that till the accused persons are found to

have undergone the likely imprisonment that they would receive in case

of conviction, they should never be released on bail. That was a decision

on its own set of facts where the time already spent by the petitioner as

an undertrial was also taken into consideration keeping in view the

quantity recovered and the likely sentence that may be awarded in the

event of conviction. On examining these facts, the court concluded that

the actual time spent by the petitioner as an undertrial, was clearly

much more than, or equal to, the punishment that might be awarded

even in case of conviction.

4.     To take Mr. Lao's proposition to its logical conclusion would mean

that in case an accused is apprehended with, say, 99% of the maximum

quantity prescribed as, "intermediate" under the statute, then until he

spends 99% of the maximum sentence awardable on conviction under

the Act, while in custody as an undertrial, he cannot be enlarged on bail.

To my mind, this is not a sound proposition. It cannot be the sole,

inflexible criteria, as contended by learned counsel for the State. The

NDPS Act does not prescribe such an approach.




Bail Application No.230/2008                                     Page 3 of 4
 5.     Even under Section 37 of that Act, such an approach has not been

prescribed, despite the fact that it has been specially enacted to make

the grant of bail more stringent in cases where the recovery is of

"commercial" quantities. Mahesh Pal Singh's case (supra) also does

not lay down any such criteria. Furthermore, if the courts were to

approach all such cases in this manner, as is being suggested by Mr.

Lao, it would amount to sanctioning detention without conviction since

courts would then be obliged to refuse bail until the accused has already

completed the likely sentence to be awarded to him if he is eventually

convicted. No doubt the actual quantity recovered must always be one

of the considerations for grant of bail, but other factors must also be

kept in mind and, undeniably, every case turns on its own facts.

6.     The petitioner is found to have no previous criminal involvement;

all the witnesses are official witnesses; Section 37 of the NDPS Act does

not apply, and since no other ground is urged in opposition, I consider it

appropriate that the petitioner be released on bail on his furnishing a

personal bond of Rs.50,000/- with two sureties in the like amount, of

which one surety, shall be a local surety to the satisfaction of trial court.

7.     Dasti.




                                             Sudershan Kumar Misra, J.

July 24, 2008 Ib/OPN