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In reply to the argument of the State Counsel, the counsel for the petitioner has argued that as an individual, the petitioner cannot be made to suffer simply because the `object' of the Act is perceived to be important for Society. Relying upon the judgment of the Hon'ble Supreme Court in 2017 AIR (SC) 5500 - Nikesh Tarachand Shah Vs. Union of India and another, the counsel has contended that a similar provision as contained in Section 45 of the Prevention of Money Laundering Act, 2002 has been held to be unconstitutional by holding that the importance of the `object' of the Act cannot be made a ground to trample the right of life and liberty guaranteed to the petitioner under Article 21 of the Constitution of India. Any law in any form has to confirm to Article 21 of the Constitution. In 7 of 46 CRM-M-30643 of 2018 (O&M) -8- case of conflict between the two, the `object' of the Act has to give in to the right of the individual. Fundamental right under Article 21 cannot be restricted for the sake of `object' of the Act. The judgments relied upon by the State Counsel have not taken into consideration the earlier judgments of the Large and Constitution Benches of the Supreme Court. Therefore, they are not the valid precedent on the proposition of law that only the `object' of the Act can be made basis for restricting the right given under Article 21 of the Constitution. The counsel has further argued that like any other citizen, he is also entitled to be considered for grant of bail under more liberal provisions of Section 439 of Cr.P.C. Applying strict provisions of Section 37 of NDPS Act is a discrimination with him. Still further, it is argued that otherwise also the requirements prescribed under Section 37(1)(b)(ii) are totally irrational, defy logic, and are bound to be applied in discriminatory and arbitrary manner. This part of the Section is nothing but luxury of language, drafted to disguise the attack on fundamental right. Therefore, this part of the Section deserves to be set aside. In any case, the petitioner is entitled to bail taking into consideration Article 21 of the Constitution, irrespective of any limiting provision contained in Section 37 of the NDPS Act.

(i) The satisfaction being limited to the purpose of bail.

(ii) The satisfaction being supported by material and facts on record.

The multi-cotomy of the ways in which Court can be led to apply the language of Section 37 itself shows the possibility and amenability of this language to be applied in a discriminatory manner, differing from Court to Court. This may also lead the Court, to just writing that it has the satisfaction as prescribed under Section 37(1)(b)(ii) and to complete the formality of language. So despite the judges being trained in the job of appreciating the facts and circumstances, the criterion embedded in the language of Section 37(1)(b)(ii) itself being amenable to variation, difference in its application, from Court to Court, cannot be ruled out. However, this is just one instance of the irrationality of the language of this Section, probably which led the Hon'ble Supreme Court to observe in Nikesh Tarachand Shah's Case (supra) that the Hon'ble Supreme Court has upheld such a language only "grudgingly".

This language also creates an inconsistency in itself, because if a Court granting bail records a satisfaction that there are reasonable grounds for believing that the petitioner is `not guilty' of such an offence then this may, at least to some extent, foreclose the option of the trial Court for holding that the petitioner `is guilty' of such an offence although this may or may not be the intention of the legislature, as observed by the Hon'ble Surpeme Court. But the language of Section 37(1)(b)(ii) says so in so many words. As per this language, the "reasonableness" is required only qua existence of grounds for belief of Court but the belief of the Court, as such, qua the accused being not guilty is to be unqualified. No Court can record a satisfaction and belief that a person is `guilty' or `not guilty' of the offence at 36 of 46 CRM-M-30643 of 2018 (O&M) -37- the stage of grant of bail. What is required to be done after a full fledged trial of an accused cannot be sought to be considered and recorded at the initial stage of trial. If a language of a Statute does not satisfy the test of constitutional validity then that language cannot be retained on the statute book at all, except at the cost of creating avenues for its discriminatory use. If by leaning towards the presumption of the validity of a Statute, a particular language used in Statute is upheld, by reading it in a language different than the language actually used in the Statute, so as to assign it a meaning within the scope of constitutional validity, then it can create a dichotomy or multifariousness in its operation. In such situation, it is bound to be used in different manners by different Courts. One Court can apply it in a read down language while the other Court may insist upon the actual language used in the Statute. This can be clearly seen in judgments clarifying and applying the language by adopting different degrees of satisfaction of Court. So in such a situation, possibility of discriminatory application of the same provision qua two different persons cannot be ruled out. This would be violative of Article 14 of the Constitution of India.

As clarified in the beginning itself, although, the above said discussion by this Court may have some indications towards constitutional invalidity of the provision, however, pronouncement on the constitutional validity of the provision is not the domain of the present petition. The constitutional validity of the provision can be considered only by the appropriate Court in the appropriate proceedings. Ordinarily, the provision 42 of 46 CRM-M-30643 of 2018 (O&M) -43- of a Section of an Act would be necessarily followed by the Court, unless declared as ultra vires of the Constitution. However, since the Hon'ble Supreme Court in case of Shiv Shanker Kesari's case (supra) has held that satisfaction of a Court can be for a `limited purpose' of considering the question of releasing the accused on bail also and in the recent judgment in case of Nikesh Tarachand Shah (supra) has again reiterated the 11 Judges Bench judgment of the Hon'ble Supreme Court and has categorically held that, it is not the `object' of the Act or the `form' and so the language or modality thereof; which is material, rather it is its `direct effect' of such state instrument, on the right of an individual which is material for the jurisdiction of the Court to grant relief of protection of right of an individual, and has held the provision similar to the one as contained in Section 37(1)(b)(ii) as ultra vires, therefore, this Court being a Constitutional Court, it would not be appropriate for it to put the citizen to legal asphyxia by refusing to entertain his reliance upon the above-said judgment of the Hon'ble Supreme Court, even for the limited purpose of granting bail, which is sought by the petitioner on the ground that his bail is being opposed by the State for the reasons which has direct effect on his fundamental rights and are discriminatory, arbitrary, irrational, unreasonable and unjust and thus violate his right under Article 21 of the Constitution. It is trite law that the Court has to chase the injustice wherever it is found and that in case of conflict between a provision of law and the fundamental right of a citizen, as interpreted by the Hon'ble Supreme Court, it is the fundamental right which has to be given precedent. In view of the above discussion and judgments, it may not be appropriate to tell the petitioner to 43 of 46 CRM-M-30643 of 2018 (O&M) -44- wait in jail till the constitutional validity is formally considered and decided. The petitioner may separately raise the challenge to the validity of the provisions of Section 37(1)(b)(ii). Therefore, for the limited purpose of considering as to whether the petitioner should be released on bail, it can be considered, whether the procedure being insisted by the State; for its plea of denying the bail to petitioner; is non-discriminatory, rational, reasonable and fair procedure or not. For this limited purpose of consideration of bail of the petitioner, this Court has considered the aspect of discrimination, arbitrariness, reasonableness and justness of the conditions being insisted upon by the State, and found the same to be discriminatory, irrational and unreasonable and unjust and thus not worth defeating the right of the petitioner to get bail, if otherwise found eligible by a Court.