Jammu & Kashmir High Court - Srinagar Bench
Firdous Ahmad Payer vs State Of Jk & Ors. on 17 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B. A. No. 133/2018
IA No. 01/2018
Date of Order: 17th of October, 2018.
Firdous Ahmad Payer
Vs.
State of JK through SHO Police Station, Dangiwacha, Baramulla & Anr.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Aazim Pandith, Advocate.
For the Respondent(s): Mr Saad Rafi Ganie, Government Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. On 6th of July, 2018, a police patrol party, during a routine checking, found a person moving suspiciously near Watergam. He was carrying a polythene bag in his hand. He was asked to stop but he tried to give the patrol party a slip. He was chased and apprehended. During the search of the bag, 10 bottles (100 Ml each) of the banned contraband viz. Maxcoff-T Syrup, under the composition Codeine Phosphate=10 mg/5ml, Triprolidine Hydrochoride=1.25 mg/5 ml, were recovered from it, as a consequence of which, offences under Section 08/22 NDPS Act, were found to have been B.A. No. 133/2018 IA No. 01/2018 Page 1 of 13 made out against the accused/applicant and, accordingly, a case bearing FIR No. 83/2018 was registered against him for the commission of the aforesaid offences at Police Post, Watergam, with which the investigation ensued. The applicant/ accused was arrested on the same day. The samples of the recovered contraband were taken. These were sent to the J&K Forensic Science Laboratory, Srinagar, for examination and analysis. The statements of the witnesses conversant with the facts of the case were recorded and the site plan was also prepared.
02. The applicant filed an application for the grant of default bail in his favour in the FIR aforesaid before the Court of the learned Additional Sessions Judge, Sopore, which came to be rejected by an order dated 7th of September, 2018. Aggrieved by the said order, the applicant has filed the instant application before this Court for the grant of bail in his favour, inter- alia, on the grounds that he was in possession of an intermediate quantity of the contraband that is 10 bottles of Maxcoff-T, which does not fall within the scales of the commercial quantity. It is also stated that the applicant will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on him, in case he is admitted to bail. In the premises, it is urged that the applicant be admitted to bail for the commission of the aforesaid offences.
03. The respondents have resisted and controverted the application of the applicant chiefly on the grounds that Maxcoff-T was recovered from the possession of the applicant. The applicant has committed a heinous offence. The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal B.A. No. 133/2018 IA No. 01/2018 Page 2 of 13 and zest. The motion so preferred by the applicant seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected.
04. Heard and considered.
05. Risking repetition, what requires to be repeated and reiterated here is that the learned Additional Sessions Judge, Sopore, has rejected the application of the applicant. The question therefore that arises for consideration at first is whether a successive 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 the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh in a subsequent application moved on the same set of facts, particularly when the order of the rejection of the bail is bad and perverse on the face of it. Resort can, in this behalf, be had from the law laid down in "AIR 1978 SC Page 179", wherein it has been held 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 B.A. No. 133/2018 IA No. 01/2018 Page 3 of 13 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."
06. Taking a cue from the law laid down above, the High Court of Bombay in the judgement reported in "Crimes Volume 3 1987 Page 363", paragraph No.7 of which is germane to the issue, has held as follows: -
"The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well- settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr. PC. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)."
07. Looking at the merits of the application on hand, it needs must be said that in exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of B.A. No. 133/2018 IA No. 01/2018 Page 4 of 13 Revenue notification S.O. 527(E) dated 16th July, 1996, except in respect of things done or omitted to be done before such supersession, the Central Government specified the quantity mentioned in columns 5 and 6 of the Table, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and the commercial quantity, respectively, for the purposes of the said clauses of that section. Column 5 provides that a quantity upto 10 grams of Codeine falls within the parameters of small quantity and a quantity of 1 Kg of the same substance falls within the scales of the commercial quantity.
The contraband seized in the case, as is repeated herein, is Maxcoff-T (Codeine) 10 bottles of 100 ml each which makes the total quantity of the entire mixture of the contraband as 1000 mls. Although, the quantity of the contraband is in liters which is the unit of Volume and the quantity of the contraband shown in the Notification is in gms (Kg) which is the unit of mass/weight, and there is absolutely no formula in physics by which volume can be converted into mass, yet, it has been found out that 1 litre of water at room temperature is equal to 958 gms. If the same formula is applied to the seized contraband, the quantity is in any case less than 1 kg and does not fall within the fours of the commercial quantity to which the rigor of Section 37 of the NDPS Act applies. Moreover, it is interesting to note the definitions of Commercial Quantity, as contained in Section 2 (viia) & Small Quantity as detailed in Section 2 (xxiiia) of the NDPS Act, which read as under:
"Commercial Quantity", in relation to narcotic drugs and psychotropic substances means any quantity greater than the quantity specified by the central government by notification in the official gazette;B.A. No. 133/2018 IA No. 01/2018 Page 5 of 13
"Small quantity" in relation to narcotic drugs and psychotropic substance means any quantity lesser than the quantity specified by the central government by notification in the official gazette;
Going by the definition of the small and the commercial quantities, as spelt out above along with the notification appended to the NDPS Act, what comes to the surface is that a smaller quantity is a quantity lesser than 10 gms, irrespective of the same having been shown in column 5 of the notification as a small quantity. The quantity of 10 gms is actually an intermediate quantity and the commercial quantity is a quantity greater than the one specified in the notification, although in column 6 of the notification, the same has been labeled as a commercial quantity. It falls within the range and scope of an intermediate quantity, when tested on the touchstone of the definition of the commercial quantity This point has been settled in the case titled "Ratto v. State of H.P.", reported in "2003 2 CurLJ(HP) 227", Paragraph Nos. 41 & 42 of which are detailed below, word for word and letter for letter:
"41. As already noted there is hardly any ambiguity, much less conflict between section 2 (viia) and the notification as extracted herein above for determination of what would be the commercial quantity. By virtue of powers conferred under Sub Section (viia) of Section 2, Central Government is authorized to notify as to what would be the commercial quantity. Because the "Commercial quantity" on a plain reading of its definition amongst other things has to be "... greater than the quantity specified by the Central Government by notification.....".
Under 2001 Act notification supra was issued specifying the quantity for the purpose of Section 2 (viia) of the Act. A perusal of this notification indicates that quantity specified is one kilogram. Various columns of the notification extracted hereinabove have to be read in conjunction with the substantive provision of Section 2(viia) of the Act. This also puts a harmonious construction on both, notification as well as Section 2(viia). While determining the quantity under this sub section, it has to be greater than one Kg. there is hardly any doubt regarding either the words one Kg.", or the "commercial quantity" which has to be "greater than", which in our considered view would always mean any quantity more than/bigger than larger than one Kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading.
B.A. No. 133/2018 IA No. 01/2018 Page 6 of 13Thus, it cannot be said that one Kg wold be the commercial quantity for the purpose of Section 2(viia); as added by 2001 Act.
42. Another reason to take this view is that substantive and main provision of the Act is Section 2(viia) which is subject matter of the discussion in this judgment. It is also well known and accepted rule of interpretation of statutes that rules, regulations as well as notifications issued there under are meant to sub serve the purpose of main provision of law and not other way round. Notification in the instant case, as extracted hereinabove, is a delegated legislation. Therefore, it can in no case bye-pass or over-ride the substantive provision of law and in case of conflict, delegated legislation has to give way to the main provision of law."
08. 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, the 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 principles 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, but the learned trial Court appears to have applied it in the reverse. 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 demanded that some unconvicted persons should be held in custody pending trial to secure their attendance B.A. No. 133/2018 IA No. 01/2018 Page 7 of 13 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.
09. The expression '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 B.A. No. 133/2018 IA No. 01/2018 Page 8 of 13 often times caprice, in the worst, it is every vice, folly and passion to which human nature is liable."
10. It is not disputed that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity, but it is an intermediary one. On the face of such an eventuality, the application of the applicant had to be considered under the provisions of Section 497 of the Cr. PC. It is only on the application of the rigor of Section 37 of the 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 of the Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.
11. To categorize the materials in terms of quantity as small, medium and commercial is to allow escape routes for those to whom the rigor of section 37 of the NDPS Act does not apply. Had the intention of the Legislators been to treat those who are found to be in possession of the small and medium quantity of the drugs and Narcotic substances on par with those from whom commercial quantity of such substances is recovered, it could not have pierced and scaled it in different categories. The conflict between the human tendencies and the rules of society is an eternal one which cannot ever be solved or ended to the entire satisfaction of idealistic puritans. World of human society will always remain imperfect. It creates a false ethical self-importance on the part of the Courts who sit in judgment to decide or determine such cases not in accordance with the law, but by sentimental proverbs.
B.A. No. 133/2018 IA No. 01/2018 Page 9 of 1312. Testing 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 intermediary one, for which the punishment provided is upto 10 years and a fine of rupees one lac, is "bail and not jail".
13. Deprivation of liberty is tantamount to punishment. The principle 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/ applicant has been languishing in the jail for so many months by now. The applicant/ 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 get swayed by sentiments. Temper and passion have no role to play in exercising the discretion for the grant of bail.
14. In view of the preceding analysis, the applicant is admitted to bail, in case he furnishes a personal bond to the tune of Rs. 50,000/- with a surety B.A. No. 133/2018 IA No. 01/2018 Page 10 of 13 of the like amount to the satisfaction of the learned Court below on the following terms and conditions:
I. That he shall present himself before the Court, as and when asked to do so;
II. That he shall not leave the territorial limits of the jurisdiction of the trial Court without seeking permission; and III. That he shall not tamper or intimidate the prosecution witnesses.
15. Registry to send a copy of this order to the learned Court below with utmost dispatch.
16. Before parting, it needs must be said that while going through the instant application, a very intricate question came to the surface, i.e. whether the amendment incorporated in Section 167 J&K Cr. PC has been rightly reflected and published in the Volume 4 of Gupta's J&K Laws 2015 edition? This Volume is shelved in the library of almost every Court in the District judiciary as also the High Court. It contains a similar note at pages 379 and 380. It states that the proviso added to Sub-Section 2 of Section 167 has been substituted by the Jammu and Kashmir Criminal Laws (Amendment) Act, 2014 (XI of 2014). The proviso, as is incorporated in the said Volume, reads as under:
"(a) the Magistrate may authorize detention of the accused person, otherwise than in custody of the police, beyond the period of thirty days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person on custody under this section for a total period exceeding ninety days and on the expiry of the said period of ninety days the accused persons shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so B.A. No. 133/2018 IA No. 01/2018 Page 11 of 13 released under the provisions of Chapter XXXIX for the purpose of that Chapter;
This proviso, as it finds place in Gupta's J&K Laws, Volume 4, 2015 edition, brings within its ambit, scope and sweep all the offences and it substitutes 15 days instead of 30 days and 60 days in the case of 90 days, wherever they existed in the earlier enactment. The scope of the proviso in the said Volume, as it relates to the substitution, has been portrayed in a heedless, imprudent and incorrect manner. It has been abstracted wrongly and the correct position has been crystallized in the Jammu and Kashmir Government Gazette, Vol. 126, Jammu, Saturday, the 22nd March, 2014/ Ist Chai., 1936 (No.51-5), which incorporates the Jammu and Kashmir Criminal Laws (Amendment) Act, 2013 (Act No. XI of 2014) dated 22nd of March, 2014, at Chapter 3, and it is reproduced below, verbatim et literatim:
"Amendment of section 167, Act XXIII of 1989. -- In clause (a) of proviso to sub-section (2) of section 167 of the Code of Criminal Procedure, at the end of said clause, the words "In case of offences punishable under section 326A, section 326B, section 376, section 376A, section 376C, section 376D and section 376E", the period of "fifteen days" and "sixty days", mentioned aforesaid shall be read as "thirty days" and "ninety days" respectively."
There is no Criminal Laws Amendment Act of 2014 (Act XI of 2014) dated 22nd of March, 2014. It is in essence the Criminal Laws Amendment Act of 2013 (Act XI of 2014) dated 22nd of March, 2014. The said amendment is applicable to the offences under Sections326 A, 326B, 376, 376A, 376C, 376D and 376E only where the period of remand has been extended to 30 days instead of the 15 days as it existed earlier. The total period of remand has been extended upto 90 days instead of 60 days as endowed earlier. The amendment in the Gupta's J&K Laws, 2015 edition, has been published in such a manner as if it is applicable to all the offences.
B.A. No. 133/2018 IA No. 01/2018 Page 12 of 13It has been published in an irresponsible, irrational and casual manner without knowing its consequences. This Court also got swayed by the said publication and passed the orders based on the said amendment in two bail applications bearing Nos. 104 of 2018 and 109 of 2018 at paragraphs 16 and 9 respectively. The learned trial Court, in its order dated 7th of September, 2018, has referred to one of the orders passed by this Court in the bail application bearing No. 104/2018, titled "Tariq Ahmad Bhat & Anr. V. State", and has rejected the same after placing reliance on it. The editor has, in the most inconsiderate, unconscious and imprudent manner, published the said amendment in the Journal. In the previous past, the publication of the Jammu and Kashmir Laws was exclusively carried into effect by the Government. It is not known whether the publisher has been entrusted with any power or authority by the Law Department of the Jammu and Kashmir Government to publish the Jammu and Kashmir Laws and the notifications issued by the Government of Jammu and Kashmir from time to time. Copy of this order shall be forwarded to the learned Chief Secretary of the State of Jammu & Kashmir, who shall look into the pros and cons of the case and find out whether any authority has been bestowed unto the editor of the Gupta's J&K Laws, 2015, to publish the J&K Laws and whether he has been authorized to publish the notifications issued by the Government from time to time.
17. The bail application of the applicant is, accordingly, disposed of, along with all connected MP(s).
(M. K. Hanjura) Judge Srinagar October 17th, 2018 "TAHIR"
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