Jagat Pal vs State of U.P.

Barkat Ali Zaidi, J.—The accused Jagat Pal and Manoj Kumar have been convicted u/s 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter called to as the ''Act'' and sentenced to 10 year rigorous imprisonment and a fine of Rs. 1 lac. In default to undergo 3 months further imprisonment.

The accused Jagat Pal wants bail pending disposal of the appeal.

Heard Sri P. N. Mishra, senior counsel assisted by Sri Apul Mishra, advocate for the Appellant and Sri N. D. Rai, Addl. Government Advocate for the State.

It was pointed out by the counsel for the State, that other co-accused Manoj who has been similarly convicted, was refused bail by the High Court.

There has to be a difference in the approach in cases where the trial is pending and in those where the conviction has been recorded by the trial court and the appeal is pending.

In cases where trial is pending, refusal of bail can be occasioned, by the circumstances, that accused may jump bail and abscond pending trial, which will disrupt the trial, or that he may try to influence witnesses and thus cause interference in the trial. These elements become non-existent, when conviction is recorded, and the appeal is pending.

The other aspect which should not be ignored is that the decisions of appeals take quite often more than a decade. If the accused is sentenced to 10 years imprisonment and his appeal is heard after 10 years, during which period he remains in jail, the appeal becomes virtually redundant, and if he is ultimately acquitted, he will have already suffered the sentence awarded to him, which will be very tragic, inasmuch as an innocent would have spent 10 years in jail without justification.

Bail in appeals should ultimately, therefore, be refused where the prosecution evidence is firm and impregnable, and where there are very slim chances of acquittal.

In the case at hand, recovery of contraband material was made from the car and the co-accused was owner-cum-driver of the car, who can, therefore, be categorized as the principal accused.

Besides this, it has been argued by the counsel for the Appellant that Section 52(a)(2) of the Act provides that immediately after the recovery the recovered articles shall be presented before the Magistrate and the samples be taken before him. In this case this was not done.

Even assuming for the sake of argument as suggested by the counsel for the State that the said direction is not mandatory and is only directory, the evidence of recovery in the case which comprises only of Police witnesses, will have to be assessed without the assurance which could have been available, if the recovered articles had been presented before the Magistrate and samples taken before him.

Besides, it is also to be seen that the quantity of charas recovered, is less than the commercial quantity, in accordance with the schedule of the Act.

In the circumstances we see no sufficient reason to refuse bail.

The Appellant be released on bail on his furnishing a personal bond of Rs. 20,000 with two sureties in the like amount to the satisfaction of the Chief Metropolitan Magistrate, Kanpur Nagar, and the execution of punishment in question, shall remain suspended pending disposal of the appeal.