TMI Blog2018 (8) TMI 1907X X X X Extracts X X X X X X X X Extracts X X X X ..... d in that Section. However, this Section 439-A has its application only qua specified and limited number of offences under Indian Penal Code, Explosive Substances Act and the offences under the Arms Act. But even this restriction upon the discretion of the High Court, to release a person on bail, ends at this point only. However, Section 37 of the NDPS Act prescribes much more rigorous conditions for release of a person on bail during the trial. Besides prescribing for giving opportunity of hearing to the Public Prosecutor, this Section gives a right to the Public Prosecutor to oppose the application. On mere opposition by the Public Prosecutor, to the grant of bail to the accused, this Section castes a duty upon the Court to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail. The entire controversy in this case is regarding the above-said two conditions. Since the life and liberty of a person cannot be violated except in accordance with due process of law, which has been interpreted to be a just, reasonable and fair process, therefore, it has to be seen wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate is not the sufficient compliance of Section 50 of NDPS Act. Even the factum of giving such option is being denied by the petitioner. The provisions of the above two Sections are meant, basically, to protect an individual against the false implication by the Police. If this protection is sought to be denied by the Police then this is one of the reasons which can lead, and is leading, the Court in the present case, to come, to a prima-facie, but reasonable satisfaction that the petitioner is not involved in the crime allegled in the present case - so far as second part of Section 37(1)(b)(ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit `any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been given certain basic rights which cannot be taken away by the State. But the State being State, sometimes for right reasons and sometimes for presumably right reasons, tries to encroach upon even those basic and inviolable rights of an individual. Hence, the tussle between the `rights' of the individual and the `might' of the State continues. The jurisprudence is grappling with issue of finding the right balance between individual `right' and the `might'/`interest' of the State. Under Indian Constitution as well, the persons/citizens have been given certain rights which are fundamental to the human existence. Out of those, right to life and liberty guaranteed by Article 21 of the Constitution of India is one such right, which is considered to be of such immense importance that it cannot be suspended even for the sake of or under the other provisions of the Constitution itself. Still effort is made by the State to regulate even this right of the individual citizen, in the name of the `interest of Society' or the existence of the State. One such aspect of such Regulation of right of the individual to life and liberty is; providing for the person alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id FIR was registered on the basis of writing sent to the Police Sation by the abovesaid ASI Gurnam Singh. As per the allegations, the sample of the seized material was sent to Chemical Examiner and as per the report of the Chemical Examiner, Alprazolam was found in the sample. Accordingly, the petitioner was kept in custody. The petitioner has asserted that he is a law abiding citizen and that he has been roped in a false case, to increase the statistics of the Police; during the special drive launched against the Narcotics. In fact, there was no recovery from the petitioner nor was he arrested from the spot, as claimed by the Police. The petitioner was picked up by the Police from his locality on 19.03.2017 from near the place of worship of Peer Di Jagah; in the presence of his brother Lalit Kumar, and he was brought to the Police Station and illegally detained there. Subsequently, the petitioner was involved in the present false case by the Police. The petitioner had filed an application for releasing him on bail pending trial before the Special Judge, Jalandhar. However, the Court of Special Judge, Jalandhar dismissed the bail application filed by the petitioner; by obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment dated 05.04.2017. In fact, the petitioner has never indulged in dealing with the Narcotics at all. Counsel has further submitted that the petitioner has been in custody since 22.03.2017 and despite passage of about one and half years, the prosecution has examined only three witnesses. So, the trial is likely to take a long time. Therefore, the petitioner is entitled to be released on bail pending trial. On the other hand, learned State Counsel has vehemently submitted that since the intoxicating powder weighing 300 grams, containing Alprazolam, a prohibited substance, is recovered from the petitioner, therefore, the petitioner is not entitled to be released on bail. It is further contended by the counsel that, in any case, before ordering the release of the petitioner on bail, this Court has to take into consideration the rigorous provisions of granting bail; as contained in Section 37 of NDPS Act. It is contended that the `object' of the Act is of immense importance to the Society. Therefore, the right of bail can be restricted for this object. Counsel has relied upon the judgment of the Supreme Court rendered in 2017(4) RCR (Criminal) 644 - Union of India v. Niyaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirements prescribed under Section 37(1)(b)(ii) are totally irrational, defy logic, and are bound to be applied in discriminatory and arbitrary manner. This part of the Section is nothing but luxury of language, drafted to disguise the attack on fundamental right. Therefore, this part of the Section deserves to be set aside. In any case, the petitioner is entitled to bail taking into consideration Article 21 of the Constitution, irrespective of any limiting provision contained in Section 37 of the NDPS Act. The above said arguments of the counsels take the discourse to the constitutional validity of Section 37(1)(b)(ii) of the NDPS Act. But none of the counsels has pointed out any judgment where the constitutional validity of this provision is directly considered and decided by the Court. In the present proceedings, this Court also cannot pronounce upon the constitutional validity of this provision. This aspect can be considered only by the appropriate Court/Bench and inappropriate proceedings. However, since certain arguments have been raised before this Court including the arguments having bearing upon the right of the petitioner guaranteed under Article 21 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. A bare perusal of Section 439 of Cr.P.C shows that this Section has left the discretion of the Sessions Court or of the High Court to be comparatively unfettered and leaves upto the Court conscience as to whether to impose conditions upon the persons released under that Section, primarily, to secure his presence during trial or as an effort to prevent the person so released, from indulging in criminal activities in future. Although another Section, (added in Punjab), Section 439-A Cr.P.C casts upon High Court to record reason for its satisfaction that there are reasonable grounds for believing that such person is not guilty of any offence specified in that Section. However, this Section 439-A has its application only qua specified and limited number of offences under Indian Penal Code, Explosive Substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, which is material, it is the `direct effect' upon the right of the individual which shall be the determining factor for judging the constitutional validity of the state action. The relevant part of the judgment is as under:- 19. However, it was only R. C. Cooper's case that the doctrine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in substance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legislatures with reference to legislative Lists. The question which is asked in such cases is : what is the pith and substance of the legislations; if it is within the express powers, then it is not invalidated if incidentally it effects matters which are outside the authorised field . Here also, on the application of this doctrine, the question that is required to be considered is : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, J., speaking on behalf of the majority in; Bennett Coleman's case, it laid down two interrelated propositions, namely. First, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly,, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms the real test. Still further, the Constitution Bench of Hon'ble the Supreme Court in Indian Express Newspapers (Bombay) (P) Limited v. Union of India, (1985) 1 SCC 641 held that there is no rational distinction between the plenary legislation and subordinate legislation when it comes to the ground of challenge under Article 14. Hence, the test of manifest arbitrariness, as laid down in the judgments in case of Maneka Gandhi's case (supra) would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness for invalidating the legislation must be something prescribed to be done by the legislature, irrationally and/or without adequate determining principle. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. The effect of the above said judgments is that any law, through which the life and liberty of an individual is sought to be curtailed, has necessarily, to satisfy the test of reasonableness, justness and fairness and also the test of exclusion of arbitrariness and irrationality. Hence, such a law has to pass the test of both, Article 14 and Article 21 of the Constitution of India. It is immaterial whether such law is made by legislature or made by executive in exercise of its powers of subordinate legislation. If such provision suffers from manifest arbitrariness, irrationality or is prescribing something to be done without adequate determining principles, then such law has to be struck down as unconstitutional, due to the same suffering from arbitrariness and discrimination and, therefore, denying the equal protection of law as guaranteed by Article 14 of the Constitution, besides unduly encroaching upon the right guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be any presumption or any conclusion, of any degree that such a person is `guilty' of an offence. Although in certain cases, there are presumptions under which an accused is taken to be akin to guilty till he rebuts that presumption. However, even those presumptions are not of guilt of the accused as such. Rather, those presumptions are only regarding certain facts, intentions or the circumstances or the legal fictions, attending the conduct of the accused which might have transformed into an offence. Therefore, before conclusion of the trial, no Court can presume or be satisfied, to any degree, that a person is `guilty' of an offence. As corollary to this, ordinarily, the accused cannot be kept in custody till he is proved to be guilty. Therefore, it has been established as basic principle of jurisprudence that during the pendency of a trial of an accused, the bail is a rule and the jail is only an exception. These two propositions do not need any expensive deliberation through the support of the Court judgments. However, it is relevant to reproduce few lines from the judgment of the Hon'ble Supreme Court rendered in Gudikanti Narasimhulu v. Public Prosecutor (1978) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision came to be considered by the Hon'ble Supreme Court in the judgment rendered in 2017 AIR (SC) 5500 - Nikesh Tarachand Shah v. Union of India and Another. After considering all the provisions of the Constitution, previous precedents as contained in the judgment of the Hon'ble Supreme Court and the operational effects of above said Section 45 of the Money Laundering Act, the Hon'ble Supreme Court held the provision to be unconstitutional, being arbitrary and irrational. Although the Hon'ble Supreme Court declared the above said provision to be unconstitutional in view of the fact that the application of this provision was arbitrary in view of the classification of the offences contained in the Schedule of the Act, as well as qua its applicability for the offences under the general law. However, the Hon'ble Supreme Court also pointed out the irrationality of such a provision in general. It is apposite to reproduce the relevant part of the judgment of the Hon'ble Supreme Court which is reproduced as hereinbelow:- 35. Another conundrum that arises is that, unlike the Terrorist and Disruptive Activities (Prevention) Act, 1987, there is no provision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in paragraph 18 of the judgment are to be looked at. Under Section 45, the Court must be satisfied that there are reasonable grounds to believe that the person is not guilty of such offences and that he is not likely to commit any offence while on bail. In this very judgment, the Hon'ble Supreme Court also observed that there have been similar provisions in other Acts and those provisions have also been upheld by the Supreme Court, only grudgingly . Pointing out towards the probable indefensibility of such provisions and highlighting the fact that such provisions cannot be upheld except by reading them in a language other than the one in which such provisions are present in the Statute, the Hon'ble Supreme Court pointed out the para No.44 of the judgment of the Hon'ble Supreme Court rendered in (2005) 5 SCC 294 - Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another, dealing with Section 21 of Maharashtra Control of Organised Crimes Act, 1999 which is as under:- xx xx xx xx xx xx The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the application for bail ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. The word reasonable has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word reasonable . In Stroud's Judicial Dictionary, 4th Edn., p.-2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he think. The reasoning which built up the old scholastidc logic sounds now like the jingling of a child's toy. xx xx xx xx xx xx 11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of by holding that (1) Section 32A does not in any way affect the power of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the Appellate Court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment. In 2009(1) RCR (Criminal) 239 - Ratan Kumar Vishwas Vs. State of U.P. and another, while considering the applicability of Section 37 for suspension of sentence held as under:- 15. In the said case it was clearly observed that a sentence awarded under the Act can be suspended by the Appellate Court only and strictly subject to the conditions as spelt out in Section 37 of the Act. 16. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on embedded in the language of Section 37(1)(b)(ii) itself being amenable to variation, difference in its application, from Court to Court, cannot be ruled out. However, this is just one instance of the irrationality of the language of this Section, probably which led the Hon'ble Supreme Court to observe in Nikesh Tarachand Shah's Case (supra) that the Hon'ble Supreme Court has upheld such a language only grudgingly . The judgment of the Supreme Court in case Nikesh Tarachand Shah's case (supra) shows that one of the grounds for holding the provision of Section 45 of Money Laundering Act, 2002 as unconstitutional was that there was no prohibition in the Money Laundering Act for grant of anticipatory bail. Therefore, a person could be granted anticipatory bail under Section 438 Cr.P.C without adverting to the conditions prescribed under Section 45 of Money Laundering Act and he can continue on bail without the Court recording its satisfaction qua the conditions prescribed under Section 45 of the Money Laundering Act. However, if a person is somehow arrested then he cannot be released on bail except after recording of the satisfaction by the Court as to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to be right in arguing that the two conditions as prescribed in Section 37(1)(b) (ii) are irrational and defy human logic. Needles to say that the offence, by definition, is an act or the consequences of an act of a person, as reflected in a fact or set of facts; which is made punishable by law. Unless the set of facts, which are made punishable by law are established in accordance with law a person cannot be convicted. Section 37(i)(b)(ii) of the NDPS Act requires the Court to be `satisfied' that there are `reasonable grounds for believing' that the person seeking bail is `not guilty' of such an offence. The mandatory requirement of the satisfaction of the Court, at the stage of grant of bail, qua the petitioner not being guilty of such an offence militates against the presumption of the innocence of the accused till he is proved guilty. This has been so held also by the Hon'ble Supreme Court in 2014(4) RCR (Criminal) 75, Union of India Vs. Sanjeev Vs. Despande, in para No.6 which is as under:- 6. Section 37[1] of the Act stipulates that all the offences punishable under the Act shall be cognizable. It further stipulates that: (1) persons accused of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us to Amarmani Tripathi (supra) at para 18, in which it was stated that, for grant of bail, the Court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence being repeated has also be seen. It is obvious that the twin conditions set down in Section 45 are a much higher threshold bar than any of the conditions laid down in paragraph 18 of the aforesaid judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the various factors set out in paragraph 18 of the judgment are to be looked at. Under Section 45, the Court must be satisfied that there are reasonable grounds to believe that the person is not guilty of such offence and that he is not likely to commit any offence while on bail. This language also creates an inconsistency in itself, because if a Court granting bail records a satisfaction that there are reasonable grounds for believing that the petitioner is `not guilty' of such an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the quantity of contraband involved may be many times more than the commercial quantity. So the application of the conditions mentioned in Section 37(1)(b)(ii) becomes the dependant upon the uncontrolled undefined and unlimited discretion of the Public Prosecutor. This discretion of Public Prosecutor, besides, impinging upon the power of the Court to freely decide the question of bail to the accused, renders the entire process as liable to be discriminatory and un-informed, because Court cannot ensure that the Public Prosecutor has the necessary expertise or sincerity to the cause to take a proper decision, as to taking objection qua bail to the accused. Even the reading down of the language of Section 37(1)(b)(ii) does not save it from being inherently inconsistent and from leading to absurdity of result of its operation. As per read down language also, while granting bail as per provisions of Section 37(1)(b)(ii), the Court would be required to record, at least, the prima facie, or more than prima facie, satisfaction that the accused is not guilty of the offence alleged against him. And this satisfaction has to be recorded by the Court with reference to the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfy itself that the petitioner is not likely to commit any offence on the earth while on bail. Had this Section restricted the requirement of the satisfaction of the Court that the accused is not likely to commit any offence under NDPS Act, then probably it could have some rational behind it. However, since the language of the second part has been thrown open the entire criminal arena to be considered by the Court before grant of bail under NDPS Act, therefore, this language does not have even the nexus to the object to be achieved by NDPS Act. Moreover, a Court of law would always be well advised to keep in mind that `prophesy is not thy domain'. No Court, howsoever trained, can be reasonably satisfied that a person would not commit any offence, may be even under NDPS Act, after coming out of the custody. It can only be a guess-work, which may or may not turn out to be correct. However, it is not the guess-work which is mandated, but it is `reasonable satisfaction'. It can occur to mind that if a person is a first offender then he is not likely to commit an offence again or that if a person has committed, say; ten offences then he is more likely to commit offence ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be reasonably made a basis for future reasonable prediction, as against the guess work, regarding the possible mental state or possible conduct of that person. Even the sophisticated psychological theories of human behaviour, using sophisticated statistical tools of factorization, based on common minimum behavioural factors in large number of people, are still struggling to find a credible answer in this regard. Although there are judgments from the Courts to say that before a Court exercises power to grant bail under NDPS Act, it has to apply its mind to the conditions prescribed under Section 37(i)(b)(ii). All the Courts have invariably held that unless the Court so applies its mind and arrive at a satisfaction qua the conditions prescribed by Section, the Court cannot grant bail to an accused. However, in none of the judgments, any adequate determining principles have been spelled out for the Court to be guided with, in exercise of such a power qua further possible events. In fact, there can be none, if the Court is to record this satisfaction in a `reasonable' manner and on the basis of the `available record' only; and it is not to delve into a pure guess-wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the fundamental right of a citizen, as interpreted by the Hon'ble Supreme Court, it is the fundamental right which has to be given precedent. In view of the above discussion and judgments, it may not be appropriate to tell the petitioner to wait in jail till the constitutional validity is formally considered and decided. The petitioner may separately raise the challenge to the validity of the provisions of Section 37(1)(b)(ii). Therefore, for the limited purpose of considering as to whether the petitioner should be released on bail, it can be considered, whether the procedure being insisted by the State; for its plea of denying the bail to petitioner; is non-discriminatory, rational, reasonable and fair procedure or not. For this limited purpose of consideration of bail of the petitioner, this Court has considered the aspect of discrimination, arbitrariness, reasonableness and justness of the conditions being insisted upon by the State, and found the same to be discriminatory, irrational and unreasonable and unjust and thus not worth defeating the right of the petitioner to get bail, if otherwise found eligible by a Court. However, since the judgments of the Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any offence' or `offence under NDPS Act' after being released on bail, then this Court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, the satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner. However, it has come on record that earlier also, the petitioner was involved in a case, but he has been acquitted in that case. So his antecedents are also clear as of now. Moreover, since this Court has already recorded a prima-facie satisfaction that petitioner is not involved even in the present case and that earlier also the petitioner was involved in a false case, then this Court can, to some extent, venture to believe that the petitioner would not, in all likelihood, commit any offence after coming out of the custody, if at all, the Court is permitted any liberty to indulge in prophesy. In view of the above, the present petition is allowed. The petitioner is ordered to be released on bail during trial. Let the petitioner be released on bail on his furnishing bail bonds/ sureties to the satisfaction of the trial Court. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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