2018 (7) TMI 2344 - HC - Indian Laws

Seeking grant of bail (successive bail application) - Smuggling - recovery of poppy straw - contraband substances or not - offences under Section 15/18 NDPS Act - whether a successive application for bail will or will not lie before this court? - HELD THAT - 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 when the order of the rejection of the bail is bad and perverse on the face of it. What gets revealed from the order of the trial court is 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 and, therefore, 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. 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 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. 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 quantity of narcotics recovered from the applicants falls within the scales of an intermediary quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is bail and not jail . 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 terms and conditions fulfilled - bail application allowed.

Summary

Issues Involved:
1. Legality of successive bail applications before the High Court.
2. Applicability of Section 37 of the NDPS Act.
3. Judicial discretion in granting bail.
4. Conditions for granting bail.

Detailed Analysis:

1. Legality of Successive Bail Applications Before the High Court:
The court addressed whether a successive bail application can be entertained by the High Court after being rejected by the Sessions Court. It was stated that the jurisdiction of the Sessions Court and the High Court to consider bail applications is concurrent. The High Court can consider a fresh bail application if the Sessions Court's rejection is found to be bad or perverse. This principle is supported by precedents, including AIR 1978 SC 179 and a judgment from the High Court of Bombay (Crimes Volume 3, 1987, page 363), establishing that the High Court's power to grant bail is independent and original, not revisional.

2. Applicability of Section 37 of the NDPS Act:
The court examined whether the rigor of Section 37 of the NDPS Act, which restricts bail for certain offenses, applies to the case. The trial court noted that the quantity of poppy straw recovered (30 Kgs) was intermediate and not commercial. Therefore, the application for bail should be considered under Section 497 Cr. PC, not under the stringent provisions of Section 37 NDPS Act. The court emphasized that bail should be granted unless the case falls within the purview of Section 37, which was not applicable here.

3. Judicial Discretion in Granting Bail:
The court elaborated on the principles governing judicial discretion in bail matters. It reiterated that the object of bail is to secure the accused's appearance at trial, not to punish or preventively detain them. The court must exercise discretion based on rules and principles established by the Code and judicial decisions, ensuring that deprivation of liberty is not used as a pre-conviction punishment. The court cited eminent jurist Benjamin Cardozo and Lord Camden to highlight that judicial discretion should be informed, methodical, and not arbitrary.

4. Conditions for Granting Bail:
The court concluded that the applicants should be granted bail, considering they had been in custody for over five months, the quantity of narcotics was intermediate, and the punishment for the offense was up to 10 years with a fine. The court laid down specific conditions for granting bail:
- The applicants must present themselves before the court when required.
- They must not leave the territorial limits of the trial court without permission.
- They must not tamper with or intimidate prosecution witnesses.

The court ordered the applicants to furnish a personal bond of Rs. 50,000/- each with a surety of the same amount to the satisfaction of the trial court. A copy of the order was to be sent to the trial court for implementation. The bail application was disposed of accordingly.