In a well-written, well-worded, well-reasoned and well-articulated judgment titled Suraj Kumar Vs Union Territory of J&K th. P/S Batote in Bail App No. 259/2020 delivered on 31 December 2020, a single Judge Bench of Justice Sanjay Dhar of Jammu and Kashmir High Court has made it clear in no uncertain terms that an accused cannot be kept in custody merely for the reason that the offence alleged to have committed by him is of serious nature.

While allowing the bail application of one such accused, the Bench said that:
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. It is really commendable and must be appreciated, applauded and admired in no uncertain terms! It goes without saying that it deserves to be emulated by Judges in all similar such cases. There can be no denying it!

To start with, the single Judge Bench of Justice Sanjay Dhar of Jammu and Kashmir High Court sets the ball rolling by first and foremost pointing out in para 1 that:
As per the prosecution case, on 26.09.2020, the police of Police Station Batote intercepted a black coloured vehicle (Wagon-R) bearing Registration No. JK02AV-3560,that was proceeding from Batote towards Nashri. The said vehicle was subjected to checking and upon its checking, one plastic bag was recovered from underneath the driver's seat. The bag was found to contain Charas. The driver disclosed his identity as Suraj Kumar alias Sonu son of Om Raj, the petitioner herein. Accordingly, FIR No. 62/2020 for offences under Sections 8/20 of NDPS Act was registered and the petitioner was arrested.

To say the least, it is then stated in para 2 that:
During investigation of the case, the recovered charas was found to be 500 gms in weight and after investigation of the case, offences under Sections 8/20 of NDPS Act were found established against the petitioner and the charge-sheet was laid before the Court of learned Special Judge (Principal Sessions Judge), Ramban (hereinafter referred to as the 'trial Court').

While elaborating further, on one hand, it is then stated in para 3 that:
It appears that the petitioner had filed an application for grant of bail in his favour in the aforesaid FIR before the Trial Court but the same was rejected by the said Court vide its order dated 27.10.2020. Being aggrieved of the said order, the petitioner has filed the instant petition before this Court for grant of bail in his favour on the grounds that the contraband allegedly shown to have been recovered from the possession of the petitioner is an intermediate quantity, as such, the rigour of Section 37 NDPS Act will not apply to the present case; that the challan has already been produced before the trial Court, therefore, there is no chance of petitioner tampering with the investigation of the case and that the petitioner is ready to abide by all terms and conditions that may be imposed by the Court in the event of grant of bail in his favour.

On the other hand, it is then pointed out in para 4 that:
The respondent has resisted the bail petition by filing its reply/status report thereto. In its reply/status report, the respondent has averred that 500 gms of Charas has been recovered from the possession of the petitioner/accused; that on the basis of evidence collected during the course of investigation, offences punishable under Sections 8/20 of NDPS Act were found established against the petitioner/accused; that the investigation of case is complete and the challan has already been produced before the learned trial Court.

Of course, it is then stated in para 5 that:
I have heard learned counsel for the parties and perused the record. The Judge thus examined in detail the contentions of both the parties. It also perused the record and analysed it in detail.

To be sure, Justice Sanjay Dhar then observed in para 6 that:
As already noted, in the instant case, learned Special Judge, Ramban, has rejected the bail petition of the petitioner. The question that arises for consideration is whether or not successive bail applications will lie before this Court. 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.

In this behalf, I am supported by the ratio laid down by the Supreme Court in the case titled Gurcharan Singh & Ors vs. State (Delhi Administration), AIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. State,(1987 Crimes Volume 3 page 363).Thus, the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence.

To put things in perspective, Justice Sanjay Dhar then after considering the judgment of the Sessions Judge went on to observe in para 7 that, Coming to the order of the learned Special Judge, Ramban, whereby the application of the petitioner for grant of bail has been rejected. It seems that severity of punishment and seriousness of offence alleged to have been committed by the petitioner has weighed with the learned Sessions Judge while rejecting the bail application of the petitioner. According to the learned Judge, 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 and for this reason, bail application of the petitioner has been rejected.
As it turned out, the Bench then makes it amply clear in para 8 that:
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 rigour 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.


To put it succinctly, the Bench of Justice Sanjay Dhar then quite significantly waxes eloquent to put forth in para 9 that, 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.

A Coordinate Bench of this Court, while discussing the principles to be followed in a case where intermediary quantity of contraband was recovered from the accused, has, in the case of Mehraj-ud-Din Nadroo and others Vs. State of J&K (BA No.74/2018 decided on 07.07.2018), observed as under:
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.

Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship.

From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances.

Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

Most significantly, the Bench of Justice Sanjay Dhar then puts forth in para 10 that, In the light of the afore-quoted principles, let us now advert to the facts of the instant case. 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 rigour 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. 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 has been arrested on 26.09.2020 and since then, he is in custody 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.

What's more, the Bench then also points out further in para 11 that:
Apart from this, 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.

Finally, the Bench then goes on to hold in the last para 12 that, For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions:

1. That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;
2. That he shall appear before the trial court on each and every date of hearing;
3. That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court;
4. That he shall not tamper with prosecution witnesses.

Copy of this order be provided to the learned counsel for the petitioner through available mode and a copy be also sent to the learned trial Court.
To summarise, what this judgment postulates is that even in offences which are serious in nature, the accused should not be kept in custody without trial in such cases also as that would tantamount to pre-trial punishment. But yes, if the accused is a habitual offender or has been previously convicted in some other case also then the accused can be kept in custody.

But the respondents in this case could not place on record anything to show that the petitioner is a habitual offender or that he has previously been either implicated or convicted of similar offences. So it was quite palpable that the accused had to be released on bail as happened also subject to the conditions as stated above in para 12! Very rightly so!

We all also know fully well that in such similar cases the notion of Bail is the rule and jail is the exception as propounded most famously by former Supreme Court Judge late Justice VR Krishna Iyer while he was Judge still holds the ground even now!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.