When A Graver Offence Is Added Against An Accused On Bail, Investigation Agency Has Option To Arrest After Seeking Fresh Order From Court: J&K&L HC

The Jammu and Kashmir and Ladakh High Court recently observed that in a criminal case when a graver offence is added, the accused who is on bail has an option of surrendering before the Court and apply for bail for newly added offence or even the investigating agency, on addition of a graver offence, has an option to proceed to arrest the accused but before doing so, it need to obtain a fresh order of arrest against the accused from the Court that had granted the bail.

The observation was made by Justice Sanjay Dhar while hearing a plea in which the petitioner had challenged two orders passed by Additional Sessions Judge, Srinagar, whereby the petitioner had been charged for the offences under Sections 8/21, 22, 29, 27-A of NDPS Act and the other order whereby bail granted to the petitioner had been cancelled.

The petitioner in his plea contended that there was no material on record of the challan laid against him that would show that he was involved in the alleged offences. Petitioner further contended that the material on record only suggests seizure of intermediate quantity of psychotropic substance from the petitioner's residence and not his involvement in the illegal drug trafficking. Lastly the petitioner also contended that it was not open to the trial court to withdraw the concession of bail to the petitioner, particularly when there was nothing on record to show that he had misused the concession granted to him.

Adjudicating upon the matter Justice Dhar observed that at the time of framing of charge even a strong suspicion against an accused would justify framing of charge and the Court at this stage is not required to see whether the accused can be finally held guilty of the offence but it has to see whether there exist sufficient grounds for proceeding against the accused. The Court has to see whether, on the basis of material on record, ingredients constituting the alleged offences are, prima facie, made out, the bench underscored.

Applying law to the case at hand the bench recorded that,

"There is also material on record in the shape of bank transactions to show that the petitioner and co-accused were financing the illicit traffic of drugs. Thus, there is sufficient ground for presuming that the petitioner was in possession of drugs containing psychotropic substances and was also a party of a criminal conspiracy to commit offences punishable under the NDPS Act. In these circumstances, the impugned order passed by the learned trial court whereby the petitioner has been charged for offences under Section 8/21/22/29/27-A of NDPS Act does not deserve to be interfered with"

Dealing with the other contention of the petitioner that there was absolutely no material on record to show that the petitioner had either misused the concession of bail or violated any condition of bail and in these circumstances it was not open to the trial court to withdraw the concession of bail granted in favour of the petitioner, the bench observed that that at the time when bail was granted to the petitioner, the offence under Section 27-A of NDPS Act was not incorporated and it is only after investigation of case was complete that the aforesaid offence was found established against the petitioner and other co-accused.

Elaborating the stated position of law on the subject the bench placed reliance on a Judgement of Supreme court in Pradeep Ram vs. State of Jharkhand and another, AIR 2019 wherein SC observed,

"When a graver offence is added, the accused who is on bail has an option of surrendering before the Court and apply for bail for newly added offence or even the investigating agency, on addition of a graver offence, has an option to proceed to arrest the accused but before doing so, it need to obtain an order of arrest against the accused from the Court that had granted the bail"

Deliberating further Justice Dhar observed that the petitioner, who was on bail, had been charged for a graver offence under Section 27-A of the NDPS Act and he has also been found to be a part of a larger criminal conspiracy as a consequence whereof he has been charged under Section 29 of the NDPS Act and when we take the total quantity of the mixture of drugs that have been recovered from all the accused who are part of the larger conspiracy, the quantity of psychotropic substance recovered falls within the category of commercial quantity and therefore the rigor of Section 37 of the NDPS Act to grant of bail gets attracted.

Upholding the trial court order the bench observed that the trial court, while cancelling bail of the petitioner, directed him to surrender before the SHO concerned or in the alternative to arrest him and send him to judicial custody, which cannot be termed to be either illegal or improper. The jurisdiction exercised by the trial court under Section 439(2) of the CrPC, in the instant case, is based on well-recognized principles of law and the same cannot be interfered with in exercise of revisional jurisdiction of this Court, Justice Dhar maintained.

In view of the law discussed above the bench dismissed the petition.

Case Title : Tufail Ahmad Chota Vs State of J&K

Citation : 2022 LiveLaw (JKL) 149

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