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TMI Blog2018 (7) TMI 2344X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 punitiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR aforesaid before the Court of the learned Additional Sessions Judge, Baramulla, which came to be rejected by an order dated 17.04.2018. Aggrieved by this order, the applicants filed another application before this Court for the grant of bail in their favour inter-alia, on the grounds, that the charge-sheet has been laid against them before the competent court, wherein the police authorities have concluded that they are involved in the commission of offences U/s 8/15 NDPS Act. The applicants have further stated that they have been falsely implicated in the case. The mandatory provision of the NDPS Act have been violated in the case with impunity and, therefore, the detention of the applicants is illegal and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The applicants have further contended that they have been in the custody for the last more than five months by now and their continued detention has hampered them from proving their innocence. A small quantity of Narcotics has been recovered from their possession. They will not tamper with the prosecution evidence and will abide by the conditions whatsoever a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate had concurrent powers of revision, the High Court s jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S. 439 (2) Cr. PC. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under S. 439 (2) Cr. PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary. 6. Taking a cue from the law laid down above, the High Court of Bombay in the Judgement reported in Crimes Volume 3 1987 page 363, Para No.7 of which is germane to the issue has held as follows:- The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. The power given by Section 439 to the High Court or to the Sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessity of order in the social life. Wide enough in all conscience is the field of discretion that remains. Even so, it is useful to notice the tart terms of Lord Camden that the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable. 11. Testing at the instant application from the above perspective, it requires to be recapitulated that the rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that the case of the applicants does not fall within the parameters of the offences that are punishable with death or imprisonment of life. Therefore, 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 . 12. De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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