Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present petition, reiterated the scope and power of the High Court in entertaining a successive bail application, in addition to, the general principles governing the same.
Brief Facts
Facts of the case are enumerated herewith;
- That the petitioner was found in the possession of contraband substances weighing around 25kgs.
- That the petitioner was subsequently booked under Sections 8 and 15 of the NDPS Act and challan was thereby filed before the Court of Principal Sessions Judge, Ramban.
- That an application was later moved before the Court of Principal Sessions Judge, Ramban, and the same was rejected by the Court vide order dated 20-03-2020.
- That being aggrieved of the said order, the petitioner has filed the instant petition, for grant of bail on the grounds that the contraband allegedly shown to be recovered from the possession of the petitioner is an intermediate quantity, and therefore the rigor of Section 37 NDPS Act will not apply to the present case.
Observations
In pursuance of its decision, the Court made the following observations;
With respect to the jurisdiction of the Court on the present Bail Application, the Court said, “The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.” Reliance was placed on Gurcharan v. State (Delhi Administration), (1978) 1 SCC 118 and Devi Das Raghu Nath Naik v. State, 1987 Crimes Vol. 3 Page 363 in this regard.
Moreover reiterating the objective of granting bail, the Court observed, “It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.”
Narrowing down to the facts of the present case, the Court said, “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 rigor 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 affect 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 is in custody for more than eleven months 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.”
Decision
Releasing the petitioner on bail, the Court said that the discretionary power of granting bail cannot be exercised on the basis of public sentiments as the guilt of the petitioner is yet to be proved. The Court further imposed necessary conditions while allowing the present application.[Manzoor Ahmad v. Union Territory of J&K, 2020 SCC OnLine J&K 570, decided on 09-11-2020]
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