Not granting Bail because offence is serious in nature, would amount to inflicting pre-trial punishment upon Accused: Jammu & Kashmir High Court

IN THE HIGH COURT OF JAMMU AND KASHMIRAT JAMMU THROUGH VIRTUAL MODE) Bail App No.259 2020 Suraj Kumar ... Petitioner(s) Through: Mr. Sunny Mahajan Advocate Union Territory of J&K th. P S Batote …Respondent(s) Through: Mr. Jamrodh Singh G.A. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE As per the prosecution case on 26.09.2020 the police of Police Station Batote intercepted a black coloured vehicle bearing Registration No. JK02AV 3560 that was proceeding from Batote towards Nashri. The said vehicle was subjected to checking and upon its checking one plastic bag was recovered from underneath the driver’s seat. The bag was found to contain "Charas". The driver disclosed his identity as Suraj Kumar alias Sonu son of Om Raj the herein. Accordingly FIR No. offences under Sections 8 20 of NDPS Act was registered and the petitioner was arrested. 2. During investigation of the case the recovered charas was found to be 500 gms in weight and after investigation of the case offences under Sections 8 20 of NDPS Act were found established against the petitioner and the charge sheet was laid before the Court of learned Special JudgeRambanAIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. Stateobserved as under: 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 offences has to be exercised according to rules and principle as laid down by the 5Bail App No.259 2020 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 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". In the light of the afore quoted principles let us now advert to 6Bail App No.259 2020 the facts of the instant case. As already noted the quantity of contraband allegedly recovered from the accused does not fall within the parameters of commercial quantity and in view of the same is intermediary one. The rigour of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affects the society in general and the young generation in particular cannot be the sole reason for rejection of the bail application particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature would amount to inflicting pre trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner has been arrested on 26.09.2020 and since then he is in custody and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore a balanced view of the matter is required to be taken by enlarging the petitioner on bail. 11 Apart from this the respondents have not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. It is not the case of the respondents that any further recovery is to be effected from the petitioner. As per the status report filed by the respondents the challan has already been filed before the trial Court. 7Bail App No.259 2020 Thus further incarceration of the petitioner in the instant case cannot be justified. If the petitioner is not enlarged on bail it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial Court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved. For the foregoing reasons the petition is allowed and the petitioner is admitted to bail subject to the following conditions: i) That he shall furnish personal bond in the amount of Rs.50 000 with one surety of the like amount to the satisfaction of the learned trial court ii) That he shall appear before the trial court on each and every date of hearing iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court iv) That he shall not tamper with prosecution witnesses. Copy of this order be provided to the learned counsel for the petitioner through available mode and a copy be also sent to the learned trial Court. “Sanjeev PS” SANJAY DHAR) JUDGE Whether the order is speaking: Whether the order is reportable: 

Summary: “Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him.” The Jammu and Kashmir High Court presided over by J. S. Dhar laid down this ratio in the case of Suraj Kumar Vs. Union of India, [Bail Application No. 259/2020]. The brief facts of this case are that police intercepted a black vehicle and then later checked the entire vehicle. The Police recovered a black plastic bag which contained around 500 grams of “charas” in it. They driver of the car i.e. the Appellant was arrested.  After investigation, a charge-sheet under Section 8 and 20 of the NDPS Act was filed against the Appellant. The Appellant filed a bail application in the Trial Court but it was rejected. Hence, the present Appeal. The Appellant stated that the quantity obtained was “intermediate” quantity as per the act and that there was no chance that he could tamper the investigation. Further, he is ready to abide by the terms and conditions laid down by the Court for grant of bail. The Court first clarified that a Superior Court can always entertain an application if it is rejected by an inferior court as laid down in the case of Gurcharan Singh &amp; Ors vs. State (Delhi Administration), AIR 1978 SC 179. Further, the court elaborated on the grant of bail in non-bailable offences and stated that, “The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on (…) 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 offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions.”