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Jammu & Kashmir High Court - Srinagar Bench

Fayaz Ahmad Khan & Anr. vs State Through Police Station Tarzua on 3 October, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
CRMC No. 270/2018
IA No. 01/2018
                                                  Date of Order: 03.10.2018.

                          Fayaz Ahmad Khan & Anr.
                                      Vs.
                       State through Police Station Tarzua

Coram:
              Hon'ble Mr Justice M. K. Hanjura, Judge.

Appearance:

       For the Petitioner(s):   Mr. Aazim Pandith, Advocate.
       For the Respondent(s):   Mr. Shah Aamir, AAG

Mr. Usman Gani, GA.

i) Whether approved for reporting in                   Yes/No
             Law Journals etc.:
ii) Whether approved for publication
             in Press:                                 Yes/No

01. In this petition the petitioners have craved the indulgence of this Court in quashing and setting aside the order dated 28.6.2018 of the Learned Additional Sessions Judge, Sopore under and in terms of Section 561-A Cr. P.C. The facts leading to the case are that the police had arrested the petitioners for possession of 8 kgs of "Bhang" in case FIR No. 19 of 2018 U/s 8/20, 29 NDPS Act. The petitioners applied for bail before the Ld. Judicial Magistrate on the assumption that the contraband is covered by the Excise Act and not by the NDPS Act, and accordingly they were enlarged on interim bail on 6.04.2018 which was later made absolute on 8.05.2018. On 28.06.2018before filing the charge sheet the CRMC No. 270 of 2018 Page 1 of 9 accused were taken into custody by the Police despite there being an order of bail in force. No arrest memo was framed. The petitioners or the members of their family were not appraised of the grounds of their arrest. When the charge sheet was presented, the defence lawyer contested the action of police as illegal for having filed the charge sheet after taking the petitioners into custody, when the bail order of the petitioners was in tact and was not modified by the same court or set aside by the higher forum. After this argument was raised prosecution came up with an application moved by the SHO for imparting necessary directions in the matter. The defence counsel filed an application for the release of the petitioners on the grounds that they were already on bail but the court below committed them to custody. On 30.06.2018 the defence counsel filed the objections to the application which had already become redundant, as the petitioners had already been committed to custody. On 30.6.2018 the case was listed for hearing on 17.07.2018 whereas the application was posted for arguments on 4.7.2018. The application did not come up for hearing on 4.7.2018 and it was also listed on 17.7.2018 with the main case. The petitioners on the above set of facts state that since the application had already become infructuous and the order dated 28.6.2018 was passed against all the canons of law, therefore, the same deserves to be set at naught.

02. Heard and considered.

03. The moot question that arises for determination in this petition is that when a new offence is added in a case during its investigation, can the order of bail passed earlier in point of time be recalled or to put i in other words does it become redundant the answer to this question is an empliatic "No" . The law is lucid and clear on the subject. The Apex CRMC No. 270 of 2018 Page 2 of 9 Court of the Country in a petition for Special Leave to Appeal (Crl.) bearing No. 10179/2017 arising out of the impugned final judgement and order dated 21.09.2017 passed in CRLWP No. 3532/2017 by the High Court of Judicature at Bombay in case titled "Manoj Suresh Jadhav & Ors Vs. The State of Maharashtra" wherein the police authorities had added an offence U/s 376 of the Indian Penal Code in the FIR against the petitioners and re-arrested them held that it is not permissible for the respondent/State to simply re-arrest the petitioners by ignoring the order dated 2.06.2016 passed by the learned Additional Sessions Judge, Pune which was in force at that time and accordingly the Apex Court directed that the petitioners shall be released on bail on the same condition/s as imposed in the aforesaid order dated 2.06.2016 by the learned Sessions Judge, Pune. In case titled "Dhivan Vs. State"bearing criminal No. 4535 of 2010,a Ld. Single Judge of the Madrass High Court held that In view of the above discussions, I have no hesitation to hold that simply because a penal provision is added in the case in respect of a serious non- bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to re-arrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court. In the instant case, since the bail granted to the petitioner earlier by the learned Magistrate has not so far been cancelled, the apprehension of arrest at this stage when the petitioner is very much on bail is baseless and so, the question of granting anticipatory bail does not arise. Again in the case of "Sukhpal Vs. State of Rajasthan" reported in 1988 1 RLW (Raj) 283, the High Court held consequently, the bail application bearing number 2437/1987, under S. 438 Cr. P.C should have been allowed but as I have taken a view that no case for cancellation of bail granted under the order dated 3.08.87, is CRMC No. 270 of 2018 Page 3 of 9 made out and no fresh application under S. 438 Cr. P.C. was maintainable merely on the ground that a further offence under Ss. 307 and 438 Cr. P.C was added. Therefore, it is directed that the order dated 3.08.1987, will hold good, even if the above named two offences which were latter on added during the investigation, more so, when no case for cancellation of bail is made out. In the case titled "Deoman Vs. The State of Maharashtra & Ors" reported in 2015 0 Supreme (Mah) 1998; it was held that it is true that some time after, the prosecution added section 326 offence in crime No. 151/2013 that was registered at Police Station Digras against the non-applicant Nos. 2 to 11 and when this offence was added against them, the non-applicant Nos. 2 to 11 were already enlarged on bail. After addition of the offence, the propriety required that the non- applicant Nos. 2 to 11 were given notice of the addition of the said offence against them and heard on the need of their being committed to Magisterial Custody.

4. Taking a cue from the clear enunciations of the law laid down above, the procedure adopted by the Ld. Additional Sessions Judge, Sopore does not appear to be in tune and in line with the mandate of law for the simple reason that at a time when the accused were committed to custody, the bail order was intact and in force. It is a trite law that when an offence is added, the order of bail granted earlier has to be set aside or modified by a positive order as there can be no automatic suspension of the order directing the grant of bail earlier in point of time. The SHO of Police Station had no locus to file an application before the Court on behalf of the prosecution and propriety demand that at least notice should have been given to the accused petitioners herein by the trial Court CRMC No. 270 of 2018 Page 4 of 9 before committing them to custody, so that a semblance of fairness could have been attached to the order.

05. Looking at the other aspect of the case, the accused in fact had been arrested by the Police authorities earlier in point of time for an offence U/s 48 of Excise Act in which they were granted bail by the ld. Judicial Magistrate Pattan. Subsequently the offences U/s 8/20, 29 NDPS Act were added to the case on the ground that Cannabis ( Bung) weighing 3.610 Kg and 5.340 kg were recovered from their possession and, therefore, the provisions of the NDPS Act are attracted in the case. The quantity of the contraband recovered from the possession of the accused does not fall within the parameters and the scales of the commercial quantity but it is an intermediatory one and, therefore, the application of the applicant had to be considered under the provisions of 497 Cr. PC. 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 Cr. PC. Therefore a realistic view and a pragmatic approach has to be taken in such a case.

06. 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 CRMC No. 270 of 2018 Page 5 of 9 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 CRMC No. 270 of 2018 Page 6 of 9 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.

07. 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.

08. Testing at the instant application from the above perspective it requires to be recapitulated that 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 applicant 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 applicant. The maxim of the law of bails which has its application to the case on hand where the quantity of narcotics recovered from the applicant falls within the scales of an intermeditory quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is "bail and not jail".

09. 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. Prison hell destroys the tender sentiments of a person. The applicant has been languishing in the jail for the last more than four months by now. The accused has to prepare for his defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot gets swayed by sentiments. The CRMC No. 270 of 2018 Page 8 of 9 temper and passion have no role to play in exercising the discretion for the grant of bail.

10. In view of the preceding analysis, the applicant 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 following 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.

14. A copy of this order shall be sent to the Trial Court with utmost dispatch.

15. The application is, accordingly, disposed of, along with the connected MP.

(M. K. Hanjura) Judge SRINAGAR 03.10.2018 "Showkat"