2020 (12) TMI 1397 - HC - Indian Laws

Seeking grant of bail (successive bail application) - Smuggling - Herion (Chitta) - illicit trade of sale and purchase of narcotic substance - offences under Sections 8/21/22 NDPS Act - whether or not successive bail applications will lie before this Court? - HELD THAT - 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. There is no dispute to the fact that the quantity of contraband recovered from the possession of the petitioner does not fall within the parameters of commercial quantity and that the same is an intermediary one. The rigor of Section 37 of NDPS Act, therefore, is not attracted to the instant case. The bail petition of the petitioner is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of Cr. P. C. - 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. 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 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. 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. 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. The petitioner is admitted to bail subject to the conditions imposed - petition allowed.

Summary

Issues:
- Bail application rejection by trial court.
- Consideration of successive bail applications.
- Severity of offense and punishment.
- Quantity of contraband and application of NDPS Act.
- Principles governing grant of bail.
- Discretion in bail grant.
- Impact of further incarceration on defense preparation.

Analysis:
1. The case involves a bail application rejection by the trial court, leading to the petitioner filing a fresh application before the High Court. The prosecution accused the petitioner of possessing heroin, leading to the registration of FIR under NDPS Act sections. The trial court rejected the initial bail plea based on the seriousness of the offense and potential social impact.

2. The High Court considered the legality of successive bail applications, citing precedents where superior courts can entertain fresh bail pleas even after rejection by lower courts. The severity of punishment and the gravity of the offense influenced the trial court's decision to deny bail, fearing social disruption if the petitioner was released.

3. The quantity of contraband found with the petitioner was an intermediate amount, not meeting the commercial quantity criteria under the NDPS Act. Therefore, the stringent provisions of Section 37 were not applicable, necessitating bail evaluation under Section 437 of Cr. P. C. The court emphasized that bail should be the rule, not the exception, and deprivation of liberty should not be punitive without conviction.

4. The court highlighted the importance of judicial discretion in bail matters, emphasizing the presumption of innocence until proven guilty. The petitioner's prolonged incarceration without conviction raised concerns about pre-trial punishment and the impact on defense preparation. The court noted the absence of evidence suggesting the petitioner's habitual offending or likelihood of further recovery.

5. Ultimately, the High Court allowed the bail petition, considering the lack of justification for continued incarceration, potential adverse impacts on defense preparation, and the presumption of innocence. The petitioner was granted bail with specified conditions, including a personal bond, appearance before the trial court, territorial restrictions, and non-tampering with witnesses.

6. The judgment underscored the need for a balanced approach in bail decisions, respecting the principles of justice, presumption of innocence, and ensuring fair trial opportunities for the accused.