Mohd Altaf vs Ut Of J&K
2023 Latest Caselaw 276 j&K

                                                        Sr. No.81
                                                        Supply List

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU


                                                Bail App No.361/2022



MOHD ALTAF                                     ... PETITIONER(S)
                   Through: - Mr. Ashish Sharma, Advocate.
Vs.

UT OF J&K                                  ...RESPONDENT(S)
                   Through: - Mr. Adarsh Bhagat, GA.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                            ORDER((ORAL)

1) The petitioner has filed the instant application under Section 439 of

the Code of Criminal Procedure for grant of bail in case FIR No.0161/2022

for offences under Section 8(a) and 21 of the NDPS Act registered with

Police Station, Poonch.

2) As per the prosecution case, on 26.07.2022, while police officials of

Police Station, Poonch, were on patrolling duty at Qazi Mohra, they spotted

a person coming from main road towards Sukha Katha. The said person, on

spotting the police, tried to run away from the spot but the police party

managed to apprehend the said person. During his questioning, the suspect

revealed his identity as Mohd. Altaf (petitioner herein). Upon his personal

search, about 7/8 grams of heroin like substance was recovered. The accused

could not justify the possession of the aforesaid contraband substance.

Accordingly, the recovered contraband substance was seized and the FIR

came to be registered against the accused/petitioner. During investigation of

the case the accused was taken into custody. The sample of the seized

contraband was sent to the FSL, Jammu, for seeking expert opinion.

3) It appears that the accused/petitioner had approached the Court of

Principal Sessions Judge, Poonch, seeking bail, but the application has been

dismissed by the said court vide its order dated 29.8.2022. 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 quantity of contraband that

is alleged to have been recovered from the possession of the petitioner falls

in the category of intermediate quantity; that the learned trial court while

rejecting the bail petition of the petitioner has not properly appreciated the

legal position attending the issue of grant of bail, inasmuch as the rule is bail

not jail which in other words means that grant of bail is a rule and its refusal

an exception and that in case bail is granted in favour of the petitioner, he is

ready to abide by all terms and conditions that may be imposed by the Court.

4) The respondent-State has resisted the bail petition by filing

objections/status report thereto. In its objections, the respondent has

contended that instant bail petition is liable to be dismissed as the petitioner

is involved in a heinous offence which is against the society at large as the

menace of drug addiction has engulfed the society and is creating havoc to

the families and that the same needs to be dealt with strong fist; that there

are reasonable grounds for believing that the petitioner would jump over the

concession of bail if granted and that this Court while considering the bail

application on the touchstone of individual liberty must not lose sight of

interest of the society.

5) I have heard learned counsel for the parties and perused the record.

6) In the instant case, learned Principal Sessions Judge, has rejected the

bail petition of the petitioner. The question that arises for consideration is

whether or not successive bail applications will lie before this Court. The

law on this issue is very clear that if an earlier application was rejected by an

inferior court, the superior court can always entertain the successive bail

application. Reliance in this regard is placed on the judgment of the Supreme

Court in the case titled Gurcharan Singh & Ors vs State (Delhi

Administration), AIR 1978 SC 179, which has been followed by the High

Court of Bombay in the case of Devi Das Raghu Nath Naik v.

State,(Crimes Volume 3 1987 363).

7) Thus, 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 Cr. P. C on the same facts and for the same offence.

8) Coming to the order of the learned Sessions Judge, Poonch, whereby

application of the petitioner for grant of bail has been rejected, the learned

Judge while rejecting bail application of the petitioner has observed that the

quantity of contraband recovered from the petitioners falls in intermediate

quantity, therefore, bar of Section 37 of NDPS Act is obviously not

applicable to the case. It seems that severity of punishment and seriousness

of offences alleged to have been committed by the petitioner has weighed

with the learned Sessions Judge while rejecting bail application of the

petitioner. According to the learned Judge, the individual interest of a person

has to give way to the larger interests of the society and for this reason bail

application of the petitioner has been rejected.

9) In the instant case, as per the prosecution story, 7/8 grams of heroin

like substance has been recovered from the possession of the accused.

Admittedly, the quantity of heroin recovered from the possession of the

accused falls in between small and commercial quantity i.e., intermediate

quantity. The rigor of Section 37 of the NDPS Act is not applicable to the

instant case keeping in view the quantity of contraband recovered from the

petitioner.

10) It is a settled position of law that grant of bail is a rule whereas its

refusal is an exception. The question whether bail should be granted in a

case has to be determined on the basis of the facts and circumstances of that

particular case. A Coordinate Bench of this Court, while discussing the

principles to be followed in a case where intermediary quantity of

contraband was recovered from the accused, has, in the case of Mehraj-ud-

Din Nadroo and others Vs. State of J&K (BA No.74/2018 decided on

07.07.2018), observed as under:

"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) In the light of the afore-quoted principles, let us now advert to the

facts of the instant case. As already noted, the quantity of contraband

allegedly recovered from the accused does not fall within the parameters of

'commercial quantity' and the same is intermediary one. The rigor of

Section 37 of the NDPS Act thus does not come into play. 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 is in custody for more than six

months now and his further incarceration will be nothing but imposition of

punishment without trial of the case. Therefore, a balanced view of the

matter is required to be taken by enlarging the petitioner on bail.

12) If the petitioner is not enlarged on bail, it may have an adverse impact

on his preparation of defence against the charges that has been laid against

him before the learned trial court. The discretion regarding grant or refusal

of bail cannot be exercised against the petitioner on the basis of public

sentiments or to teach him a lesson as his guilt is yet to be proved.

13) For the foregoing reasons, the petition is allowed and the petitioner is

admitted to bail, subject to the following conditions:

(i) That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the trial court;

(ii) That he shall appear before the trial court on each and every date of hearing;

(iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the trial court;

(iv) That he shall not intimidate or tamper with prosecution witnesses/evidence.

(v) That he shall not indulge in similar activities;

14) The bail application shall stand disposed of.

(SANJAY DHAR) JUDGE Jammu 17.02.2023 "Karam Chand"

                Whether the order is speaking:          Yes/No
                Whether the order is reportable:        Yes/No