Keeping Accused In Custody As Offences Alleged To Be Committed Are 'Serious' Would Amount To Inflicting Pre-Trial Punishment: Jammu & Kashmir HC

"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 Court said while allowing the bail application of one such accused.

A Bench of Justice Sanjay Dhar reiterated that every person is presumed to be innocent unless duly tried and found guilty and hence, withholding of bail cannot be used as a measure of punishment.

"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," the Court quoted a coordinate Bench from Mehraj-ud-Din Nadroo & Ors. v. State of J&K (BA No.74/2018).

In the case at hand, the Petitioner-accused Suraj Kumar was booked under Sections 8/20 of NDPS Act, allegedly for being in possession of 500 gms contraband.

The Trial Court had rejected his bail plea on the ground that the offence alleged to have been committed him is serious in nature and affects the society in general and the young generation.

Stating that the Trail Court ought to have adopted a balanced approach in this case, the Single Judge remarked,

"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."

In the facts of the present case, the Court noted, the contraband alleged to have been recovered from the possession of the petitioner was of "intermediate quantity" and as such, the rigour of Section 37 NDPS Act would not apply.

"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.," the Court said.

Further, it noted, the challan had already been produced before the Trial Court. Thus, further incarceration of the petitioner could not be justified.

"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.

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…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 Court observed while granting bail.

Case Title: Suraj Kumar v. UT of J&K

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