Ghulam Hassan Sheikh vs Government Through P/S Safakadal
2021 Latest Caselaw 1291 j&K/2

                                                                       S. No. 169



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                                                  Bail Appl. No. 112/2021

Ghulam Hassan Sheikh
                                                             ...Petitioner(s)

                       Through: Mr. Mehraj ud din, Adv.

                                    V/s

Government through P/s Safakadal
                                                      ...Respondent(s)
                       Through: None.

Coram:HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                          ORDER

1. According to the prosecution version, on 27.09.2021 the petitioner came to be arrested in connection with carrying dry „bhang leaves‟ thereby having committed offence under Section 8/20 of NDPS Act resulting into registration of an FIR No.196/2021 P/S Safakadal. It is stated in the petition that the petitioner came to be implicated in the FIR in question falsely and the allegations against him are frivolous. Upon issuance of notice by this Court on 07.10.2021 to the respondents for filing objections, the respondents have not chosen to file objections thereof.

2. Heard learned counsel for the petitioner and perused the record.

3. Having regard to the provisions of Section 37 of NDPS Act, same is applicable for commission of offences u/s 19, 24 and 27A only when a commercial quantity of a drug or substance is recovered. Section 37 supra forbids release on bail of a person who is found in possession of commercial quantity of drug or substance unless the prosecution is given an opportunity to oppose the bail application and the court finds that the accused is not prima facie involved in teh commission of offences. The aforesaid rider is in addition to the restrictions imposed by Section 497 Cr.PC.

4. Perusal of FIR reveals that the petitioner has been carrying allegedly the „bhang‟ and the same has been recovered from his possession. The quantity alleged to have been recovered from the petitioner admittedly does not fall within the limit prescribed, as such, the rigour of Section 37 supra is not applicable to the case of the petitioner.

5. The settled position of law as evolved by a long line of decisions of the Apex Court on the subject relating to the grant of bail is that there is no straightjacket 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 as per the settled precedents. Reference in this regard is made to the Apex Court judgment in case titled as "Data Ram Singh Vs. State of Uttar Pradesh & Ors" reported in 2018(3) SCC page 22, wherein at Paras 1,2, 4 and 5 following is noticed:-

1. "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

3. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application

for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

4. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravati, in that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."

6. The object of bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Thus, having regard to the aforesaid facts and circumstances coupled with the legal position and preposition laid down by the Apex Court in the judgment supra, petitioner/applicant is held entitled to grant of bail.

7. Having regard to what has been observed, analyzed and considered herein above, the application is allowed and the petitioner/applicant is granted bail subject to the following conditions:-

i) Furnishing of personal bond to the tune of Rs.50,000/-

with two sureties each of the like amount to the satisfaction of the Superintendent Central Jail, Srinagar.

ii) To surrender and deposit the Passport, if any, with the non-applicants within seven days from the date of passing of this order.

iii) Not to leave the territorial jurisdiction of this Court without the permission of the trial court.

iv) Not to influence directly or indirectly the prosecution witnesses or tamper with the prosecution evidence by any manner mode or method.

v) To associate with the investigation of the case as and when asked by the Investigating Officer.

8. Disposed of.

(JAVED IQBAL WANI) JUDGE Srinagar 12.10.2021 Muzammil. Q

MUZAMIL QADIR 2021.10.16 11:31 I attest to the accuracy and integrity of this document