Jammu & Kashmir High Court - Srinagar Bench
Saqib Ali Reshi vs Ut Of J&K Through Sho P/S Batamaloo on 18 May, 2021
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conferencing)
Pronounced On: 18.05.2021.
Bail App No. 01/2021
Saqib Ali Reshi
Petitioner (s)
Through: -
Mr. Mohammad Altaf Khan, Advocate.
V/s
UT of J&K through SHO P/S Batamaloo
.....Respondent(s)
Through: -
Mr. B. A. Dar, Sr. AAG with
Ms. Afroza Hassan, Assisting Counsel.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
JUDGEMENT
1. The petitioner seeks through the medium of instant petition, bail in case FIR No. 140/2020, (for short the FIR) for commission of offences punishable under Section 8/21NDPS Act, registered at Police Station, Batamaloo.
2. The instant bail application is 3rd in a row filed by the petitioner. The first bail application filed by the petitioner on 08.10.2020 has been dismissed by the court of 4th Additional Sessions Judge Srinagar, vide order dated 02.11.2020, whereas, the second bail application filed by the petitioner has been dismissed by the court of 2nd Additional Sessions Judge, Srinagar vide order dated 17.12.2020.
3. Petitioner is stated to be eighteen years old boy, studying in class 12th having been arrested in connection with the FIR supra on 26.09.2020, while travelling in a car with another person namely Saqib Nisar Bhat.
4. It is being stated that the petitioner has not committed any offence but has been falsely implicated in the FIR supra.
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5. It is being next stated that the courts below on one hand while dismissing earlier bail applications of the petitioner on 02.11.2020 and 17.12.2020, yet on the other hand the above named co-accused on 18.11.2020 came to be granted bail by the court of 2nd Additional Sessions Judge, Srinagar.
6. It is being further stated that 05 bottles of Maleate and Blurex and Chlorpheniramine Dextromethorphan Hydrobromide 30 bottles of Rex DX which contains Dextro-methorphan Hydrobromide and Chlorpheniramine Maleate 100 ml, Sparsprimprq 720 capsules have been allegedly recovered from the vehicle bearing registration No. GOIR-2246 (Alto) by the respondents and that Dextromethorphan Hydrobromide and Chlorpheniramine Maleate does not contain any kind of narcotic substance as per the law, as both preparations do not fall under the category of narcotic drugs notified in Notification No. S.O. 1055(E) dated 19.10.2001 issued by the Central Government and published in the Gazette of India (extra) part II Sec 3(ii).
7. It is being stated that the alleged recovered substances does not fall under the category of commercial quantity as provided in the Act and thus the provisions of Section 37 of the Act are not attracted.
8. It is being further stated that the allegations leveled against the petitioner from the very inception are vague and contradictory and that the procedural safeguards provided under Section 50 of the Act have been totally disregarded by the respondents.
9. Per contra, respondents in their objections while opposing the grnat of bail to the petitioner have stated that the petitioner and the Page 3 of 8 Bail App No. 01/2021 co-accused namely Saqib Nisar Bhat were found sitting in the vehicle in question in suspicious situation and upon search of the vehicle the narcotic substances were recovered. The petitioner and co-accused are stated to have failed to give any explanation with regard to the possession of the substance in the vehicle upon questioning thus resulting into registration of the FIR supra and consequently setting into motion investigation thereof.
10. It is being stated that samples of the recovered substances have been taken and sent for FSL for chemical analysis. During the investigation of the case co-accused named above is admitted to have been granted bail by the court 2nd Additional Sessions Judge, Srinagar. Charge sheet is also stated to have been filed before the court of 2nd Additional Sessions Judge Srinagar on 28.12.2020.
11. The petitioner is stated to have committed a serious and heinous offences disentitling him to the concession of bail.
12. Heard learned counsel for the parties and considered the matter.
13. Learned counsel for the parties while making their respective submissions reiterated the contentions raised and grounds urged in their respective pleadings.
14. It is pertinent and profitable to mention here that the provisions of 37 of the Act are attracted for commission of offences under Section 19, 24 and 27-A only when a commercial quantity of Drug or substance is recovered. Section 37 supra forbids release on bail of a person who is found in possession of commercial quantity of a drug or substance unless the prosecution is given an opportunity to oppose the bail Page 4 of 8 Bail App No. 01/2021 application and the court finds that the accused is not prima-facie involved in the commission of the offences. The aforesaid rider is in addition to the restriction imposed by Section 497 Cr.PC.
15. Perusal of the record reveals as also having been noticed by the Court of 4th Additional Sessions Judge, Srinagar, in its order dated 02.11.2020 supra the offences alleged to have been committed by the petitioner does not fall within the ambit and scope of Section 37 of the Act which position has even not been specifically denied by the respondents in their objections.
16. Further perusal of the record and in particular order passed by the court of 2nd Additional Sessions Judge on 17.12.2020 supra would reveal that the second bail application of the petitioner has been primarily rejected on the ground that a successive and subsequent bail application on the very same facts/grounds on which the earlier bail application was rejected cannot be entertained, unless it is shown that there is a substantial change in the facts and circumstances of the case. First question in view of above that would arise for consideration of this court, would be as to whether a successive bail application for bail will or will not lie before this court. The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for bail is concurrent. If the Sessions court has rejected an application for bail, High court can consider the prayer afresh in a subsequent application moved on the same set of facts particularly when the order of rejection of bail is bad and perverse on the fact of it. In this behalf a reference to the judgement of the Apex court passed in case titled as "Gurchawan Singhand Ors Page 5 of 8 Bail App No. 01/2021 Vs. State (Delhi Administration) reported in AIR 1978 SC Page 179" would be relevant wherein it has been held at Para 17 as under: -
"17. It is significant to note that under S.397,Cr. PC of the new code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under Sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S.435(4), Cr. PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate.
Although under Section 435(1) Cr.PC of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High court in dealing with an application under S. 439(2) Cr. PC to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High court has undoubtedly jurisdiction to entertain the application under S. 439(2) Cr.PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary."
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17. The petitioner furthermore in the petition seeks bail on the bedrock of parity while referring to grant of bail to the co-accused namely Saqib Nisar Bhat by the court of 2nd Additional Sessions Judge, Srinagar, in terms of order dated 18.11.2020. This court is conscious of the legal position enunciated by various courts that parity cannot be the sole ground for granting bail yet it has also been laid down that if on examination of a given case it transpires that the case of the petitioner before the court is identically similar to the accused who has been bailed out, then desirability of consistency will require that such an accused should also be released on bail. Having regard to the facts and circumstances of the case in this regard it is manifest that the petitioner herein is entitled to claim parity for grant of bail qua the co- accused named above.
18. Indisputably 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 straight 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 as per the settled law but also according to the principles laid down by Cr. PC and judicial precedents. Reference in this regard to the Apex court Judgment passed in case titled as "Data Ram Singh v/s State of Uttar Pradesh & Ors" reported in 2018 (3) SCC page 22, would be appropriate wherein at Paras 1, 2, 4 and 5 following has been noticed and laid down: -
1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a Page 7 of 8 Bail App No. 01/2021 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.
4. 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 accuse person to police 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 Inhuman Conditions in 1382 Prisons.
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5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah vs. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as a punishment. Reference was also made to Emperor vs. H. L. 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."
19. Viewed thus in the aforesaid backdrop, the instant application is allowed and the petitioner is held entitled to bail subject to following conditions:
I) Furnishing of personal bond to the tune of Rs. Fifty thousand with two sureties of the like amount to the satisfaction of the trial court.
II) Not to leave the territorial jurisdiction of this Court without the permission of the trial court. III) Not to influence directly or indirectly the prosecution witnesses or tamper with the prosecution evidence by any manner mode or method.
IV) To face and take the trial before the trial court without any fail.
20. Disposed of along with all connected CrLM(s).
(Javed Iqbal Wani) Judge Srinagar 18/05/2021 "Ishaq"
i. Whether the Order is speaking? Yes/No.
ii. Whether the Order is reportable? Yes/ No.