Jammu & Kashmir High Court - Srinagar Bench
Tariq Ahmad Bhat And Another vs State Of J&K; Through Sho P/S Fruit Mandi ... on 13 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA No. 104/2018
IA No. 01/2018
Date of Order: 13.08.2018
Tariq Ahmad Bhat and Another
Vs.
State of J&K through SHO Police Station Fruit Mandi Sopore
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Aazim Pandith, Advocate
For respondent(s): Mr Shah Aamir, AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. On 18.01.2018, a police party while on patrol at Fruit Mandi, Sopore intercepted a Maruti Car, bearing Registration No. JK04A-2423. They found two persons in it, who disclosed their names as Tariq Ahmad Bhat S/o Mohd Sultan Bhat R/o Krembhoora and Bashir Ahmad Dar S/o Habibullah Dar R/o Wasikhoora Handwara. During their search, Charas wrapped in maize husk weighing 808 grams was recovered from their possession and to put it appropriately 558 gms of charas were recovered from the possession of Tariq Ahmad Bhat and a quantity of 250 gms of the same substance was found within the hold of Bashir Ahmad Dar. On questioning each of them, it got revealed that they had obtained the charas through illegal means for sale to the customers and, therefore offences under Section 8/20 NDPS Act, were found to have been made out against BA No. 104/2018 Page 1 of 15 them, as a sequel to which, a case bearing FIR No. 12/2018 was registered against them for the commission of the aforesaid offences at police station Sopore, with which the investigation ensued. The samples of the charas were taken. These were sent to 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. The accused were arrested. On the completion of the investigation of the case, a charge sheet in terms of Section 173 Cr. PC was laid against the accused/applicants before the Court of the learned Additional Sessions Judge, Sopore.
2. The applicants filed an application for the grant of bail in their favour in the FIR aforesaid before the Court of the learned Additional Sessions Judge, Sopore, which it is stated, was kept on board and was not decided for almost three months. It is further pleaded that on 19.03.2018, the applicants after completing a period of 60 days in custody moved an application for default bail. It is alleged that this application of the applicants was also kept on board and remained undecided upto 26.03.2018, i.e., the 67th day of the custody of the applicants when the police authorities laid a report against them in terms of Section 173 (2) of the Code of Criminal Procedure and the right of the applicants to be admitted to bail got frustrated. It is further pleaded that the Court of the BA No. 104/2018 Page 2 of 15 learned Additional Sessions Judge, Sopore, rejected the application by an order dated 05.05.2018.
3. Aggrieved by this order of the learned Additional Sessions Judge, Sopore, the applicants filed the instant application before this Court for the grant of bail in their favour, on the grounds, inter-alia, that the charge-sheet has been laid against them before the competent court, wherein the police authorities have concluded that they are involved in the commission of offences U/s 8/20 NDPS Act. The applicants have further stated that they have been falsely implicated in the case. The mandatory provision of the NDPS Act have been violated in the case and, therefore, any further detention of the applicants is illegal, unwarranted and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The applicants have further contended that they have been in the custody for so many months by now and their continued detention has hampered them from proving their innocence. A small quantity of Narcotics has been recovered from them. They will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on them, in case they are admitted to bail. In the premises, the applicants have urged that they be admitted to bail for the commission of the aforesaid offences.
4. The respondent has resisted and controverted the application of the applicants chiefly on the grounds that charas was recovered from their BA No. 104/2018 Page 3 of 15 possession. They have 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 and zest. The motion so preferred by the applicants 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.
5. Heard and considered.
6. Risking repetition, what requires to be repeated and reiterated here is that the learned Additional Sessions Judge, Sopore, has rejected the application of the applicants seeking their release on bail and 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 particularly so 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 to 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 BA No. 104/2018 Page 4 of 15 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."
7. 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, (Para No.7 of which is germane to the issue), 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)."
8. Looking at the order of the Court of the learned Additional Sessions Judge, Sopore, whereby the application of the applicants for the grant of bail has been rejected, the learned Additional Sessions Judge has held that it should BA No. 104/2018 Page 5 of 15 be borne in mind that the persons who deal in narcotic drugs are instrumental in causing the deaths of innocent persons, who are vulnerable and can be easily harmed. The drugs cause deleterious effects and have a deadly impact on the society. The organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the drug menace has badly affected our young generation. It is further stated in the order that in the recent years this menace has assumed a proportional increase and, therefore, it is a situation of serious concern. The need of the hour is to effectively control this menace which has engulfed our societal framework, and the duty is cast on the Courts to strike a balance between the individual interest and the public interest and whenever the two are pitted against each other the later has to prevail. It is also stated in the order that no doubt the law is settled on the point that grant of bail is in the discretion of the Court where a person is accused of the commission of an offence which is non-bailable and is not punishable with death or imprisonment for life, but the discretion has to be exercised on the settled principles.
Lord Denning while discussing the role of a judge has said:-
"A judge is not a mere mechanic or a mason laying a brick on brick without thought to the overall design. He/She has to be an architect BA No. 104/2018 Page 6 of 15 thinking of the structure as a whole building for a society a system of law which is strong, durable and just. It is on his/her work that civilized society itself depends".
9. What requires to be stated at the outset is that the Courts cannot and should not get swayed by sentiment. Holding that drug peddling in the state has taken the shape of a trade and the people involved in such type of nefarious crimes appear to be under the notion that they can beat the law and continue to spoil the society by their evil intentions and to nip this evil, the duty of the responsible citizens of the society becomes more pronounced or to hold that the horrendous effects on the health of the gullible individuals who are lured and entrapped in this quagmire make one to cry his heart out and, therefore, bail under such circumstances of the case cannot be granted.
10. 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 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 scales and 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 BA No. 104/2018 Page 7 of 15 to decide or determine such cases not in accordance with the law but by sentimental proverbs.
11. 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 applicants 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.
12. 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 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 BA No. 104/2018 Page 8 of 15 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 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. BA No. 104/2018 Page 9 of 15
13. 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.
14. 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 applicants 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 applicants. The maxim of the law of bails which has its application to the case on hand where the BA No. 104/2018 Page 10 of 15 quantity of narcotics recovered from the applicants 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".
15. 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 applicants have been languishing in the jail for so many 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. Temper and passion have no role to play in exercising the discretion for the grant of bail.
16. Taking the application of the applicants on the touchstone of the argument of learned counsel for the applicants that the applicants had a statutory right to be admitted to bail on the completion of a period of 60 days in custody on the strength and anvil of Section 167 of the criminal Procedure Code what can be said is that it is a spurious and a specious argument for the simple reason that for the period of "sixty days" wherever it occurred in Section 167 Cr. PC, the period of "ninety days" has been substituted by the BA No. 104/2018 Page 11 of 15 Jammu and Kashmir Criminal Laws (Amendment) Act, 2014 (XI of 2014). On the face of the above, the argument of the learned counsel for the applicants that the applicants were entitled to be released on bail on the expiry of the period of detention of sixty days is devoid of any merit and substance and, is therefore, rejected.
17. In view of the preceding analysis, the applicants 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.
18. However, before parting, it needs to be added that the trial Court has kept the Sword of Damocles hanging high on the heads of the applicants. Their fate has been kept hanging like that of a "Trishunka". The Trial Court has disposed of the application for bail moved before him by the applicants after a great lull. It has been decided on 05.05.2018, that is, after a period of three months from 05.02.2018, the date when it was instituted. The BA No. 104/2018 Page 12 of 15 Apex Court of the country has deprecated and frowned upon this practice. It has extended repeated directions by providing the time frame within which an application for bail has to be decided and determined by the trial Court. The law laid down in the case of Amrawati and Another v. State of UP reported in 2005 Cr. LJ 755, para 47 is germane in this context. It reads as under:
"In view of the above we answer the questions referred to the Full Bench as follows :
(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v.
State of U.P., 1994 Cr LJ 1981. before deciding whether to make an arrest or not.
(2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437. CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.
(3) The decision in Dr. Vinod Narain v. State of UP. (supra) is incorrect and is substituted accordingly by this judgment".
19. The Apex Court of the country had again an occasion to deal with this subject in the case of Hussain and Another v. Union of India bearing Criminal Appeal No. 509 of 2017, para 27 of which is reproduced below word for word and letter for letter:
"To sum up:BA No. 104/2018 Page 13 of 15
(i) The High Courts may issue directions to subordinate courts that -
(a) Bail applications be disposed of normally within one week;
(b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;
(c) Efforts be made to dispose of all cases which are five years old by the end of the year;
(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;
(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports. (emphasis added)
(ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest;
(iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts;
(iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;
(v) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal (supra)".
20. The directions extended by the Apex Court as detailed above are being violated with impunity by the Trial Courts. There are no checks and balances in place and the Trial Courts behave not responsibly. They do not address to the issue in conformity with the mandate of law as has been the case here in this application. Taking this aspect of the case into consideration, the learned Registrar (Judicial) of this Wing of the High Court is directed to place the matter before her Ladyship, Hon'ble the Chief Justice so that the Hon'ble Chief Justice may be pleased to issue an order directing the Trial Courts to comply with the directions extended by the Supreme Court in letter and spirit and in case any circular/order is BA No. 104/2018 Page 14 of 15 found to have been issued on that count then it amounts to its violation for which consequences should entail..
21. A copy of this order shall be sent to the Trial Court with utmost dispatch.
22. The bail application of the applicants is, accordingly, disposed of, along with connected MP(s).
(M. K. Hanjura) Judge Srinagar 13.08.2018 "Manzoor"
BA No. 104/2018 Page 15 of 15