Karnail Singh vs State of Himachal Pradesh

Instant bail petition filed under Section 439 CrPC has been preferred by the bail petitioner namely Karnail Singh, who is in custody since

25.8.2017, praying therein for grant of bail in FIR No. 262/17 dated 24.8.2017, under Section 22 of the Narcotic Drugs & Psychotropic

Substances Act and Section 18C of Drugs and Cosmetics Act registered at Police Station Una, District Una, Himachal Pradesh.

Sequel to order dated 1.1.2018, HC Brij Bhushan has come present with the record. Mr. M.L. Chauhan, learned Additional Advocate General

has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and

returned.

Perusal of record suggests that FIR as detailed herein above came to be lodged at the behest of complainant namely HC Brij Bhushan No. 94,

who alleged that on 24.8.2017, he received a secret information that bail petitioner is involved in illegal trade of narcotic drugs, as defined under

Narcotic Drugs & Psychotropic Substances Act. On receipt of secret information, the raiding party also associated Drug Inspector namely Anup

Sharma. The raiding party alongwith Drug Inspector reached the shop of accused and effected search, as a result of which, 597 bottles of 100 ml

cough syrup namely Altorex and Onerex came to be recovered from medical shop owned and possessed by the bail petitioner. Apart from above,

police also recovered tablets namely Lomotil (1470), Trimtol (4400), Jagdol X, Tranzex Plus, Parvon Spas Plus (15900), Alprawin 0.5 (43120)

and Alprawin 0.25 (38400). During the course of search, vehicle No. HP-80-5100 (Maruti Swift Dzire) owned by the bail petitioner was also

searched wherein 49 bottles of Onerex cough syrup were recovered. Since bail petitioner was unable to produce licence, if any, possessed by him

for storing aforesaid drugs allegedly recovered from his car and medical store, police seized the contraband and registered a case against the bail

petitioner. FSL report available on record suggests that drug namely Altorex, Onerex, Lomotil, Alprawin 0.5 and Alprawin 0.25 contained

prohibited drugs namely Codeine Phosphate, Diphenoxylate Hydrochloride and Alprazolam, respectively, whereas, other drugs were not found to

be Narcotic Drugs & Psychotropic Substances as mentioned in Schedule of notification of Narcotic Drugs & Psychotropic Substances Act, 1985.

As per FSL report, 1.96 and 1.98 mg Codeine Phosphate was found present in one bottle of 100 ml cough syrups namely Altorex and Onerex,

respectively. 2.47 mg Diphenoxylate Hydrochloride and 0.0254 mg Atropine Sulphate in 3 strips of tablets namely Lomotil was found. Similarly,

FSL reported that in 8 strips of tablets namely Alprawin 0.5, prohibited drug namely Alprazolam 0.458 mg was found, whereas in drug namely

Alprawin 0.25, FSL found 0.237 mg Alprazolam in 8 strips i.e. 80 tablets, which were sent to the FSL.

Mr. M.L. Chauhan, learned Additional Advocate General, while referring to the FSL report vehemently argued that quantity of prohibited drug

as prescribed under Narcotic Drugs & Psychotropic Substances Act, if is taken into consideration strictly as per report submitted by FSL, same is

definitely a commercial quantity, as such, petitioner is not entitled for bail. Learned Additional Advocate General, while referring to the record

/status report strenuously argued that keeping in view the gravity of offence allegedly committed by bail petitioner, he does not deserve any

leniency rather he needs to be dealt with severely. Mr. Chauhan, further contended that it is not in dispute that petitioner was unable to produce

licence, if any, possessed by him at the time of search for keeping huge bulk of prohibited drugs allegedly recovered from his shop and car, as such

he was rightly arrested. Lastly, Mr. Chauhan, further contended that in case bail petitioner is enlarged on bail, a wrong message would go to the

society, which is already badly affected by drug menace, as such, bail application having been preferred by the bail petitioner may be dismissed.

Learned Additional Advocate General, further contended that bail petitioner is an influential person and in the event of petitioner being enlarged on

bail, there is every possibility of his influencing witnesses and he may dissuade them from deposing against him.

Mr. N.S. Chandel, learned counsel representing the petitioner, while refuting aforesaid submission having been made by learned Additional

Advocate General, forcefully contended that no case is made out under Section 22 of the Narcotic Drugs & Psychotropic Substances Act against

the bail petitioner as such, he deserves to be enlarged on bail. Mr. Chandel, while refuting the contentions of learned Additional Advocate General,

that no licence was made available at the time of search by the bail petitioner, contended that it is clearly borne out from record that at the time of

raid, it was informed that bail petitioner possesses valid licence for storing drugs allegedly recovered from him and same has been submitted for

renewal. While inviting attention of this Court to the record, Mr. Chandel, contended that on 13.11.2017, ASI, Police Station Sadar, Una, sent a

communication to the Drug Inspector, Una, disclosing therein recovery of drugs from the medical store and car of the bail petitioner and ASI also

sought information/opinion from the Drug Inspector whether, bail petitioner possessed any valid licence to store drugs allegedly recovered from

him or not. While inviting attention of this Court to communication dated 13.11.2017 sent by Drug Inspector, Mr. Chandel, contended that it has

specifically come on record that bail petitioner possessed valid licence to store drugs allegedly recovered from his shop and car as such, there was

no occasion for the police to keep the bail petitioner in custody, but despite having obtained report from Drug Inspector, investigating agency made

bail petitioner to suffer in jail for no fault of his. Mr. Chandel, invited attention of this Court to Rule 52A of Narcotic Drugs & Psychotropic

Substances Rules, to suggest that being a registered druggist/chemist, bail petitioner was well within his right to possess essential narcotic drugs.

Mr. Chandel, also invited attention of this Court to Rule 65A of the Narcotic Drugs & Psychotropic Substances Rules to suggest that no person

shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945, wherein bail

petitioner is registered to possess and sell Narcotic Drugs as defined / prescribed under the Narcotic Drugs & Psychotropic Substances Act.

While laying stress on communication dated 13.11.2017 sent by Drug Inspector Una, learned counsel representing bail petitioner contended that it

has been specifically opined by the Drug Inspector that all the drugs allegedly recovered from the shop and car of bail petitioner are covered under

Schedule H of the Drugs and Cosmetics Act and licence issued under Drugs and Cosmetics Rules is valid for storage of these drugs. He further

contended that it stands clearly mentioned in the report of Drug Inspector that under Drugs and Cosmetics Act, quantity of drug is not mentioned

for storage in medical store and as such, no case, if any, is made out against the bail petitioner under Section 22 of Narcotic Drugs & Psychotropic

Substances Act. Lastly, Mr. Chandel, contended that for no fault of bail petitioner, he is in jail for more than five months that too when specific

report is there on record suggestive of the fact that he possesses valid licence to sell and purchase drugs allegedly recovered from his car and

store. Mr. Chandel, while praying for grant of bail in favour of the bail petitioner, contended that the bail petitioner is a local resident of area and

shall remain available for trial and there is no likelihood of his fleeing from justice and as such, he may be released on bail. While making aforesaid

prayer, he relied upon a judgment of the Hon''ble Apex Court in State of Uttaranchal vs. Rajesh Kumar Gupta, (2007) 1 SCC 355, wherein the

Hon''ble Apex Court has held as under:

It is not in dispute that the medicines seized from the said clinic come within the purview of Schedules G and H of the Drugs and Cosmetics

Act. It is furthermore not in dispute that the medicines Epilan C. Phenobarbitone and Chlorodiazepoxide are mentioned in Entries 69 and 36 of the

1985 Act respectively, whereas none of them finds place in the Schedule I appended to the 1985 Rules. If the said drugs do not find place in

Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act

contains a prohibitory clause, violation whereof leads to penal offences thereunder.

In view of the fact that all the drugs being Item Nos. 1,2,3,4,6 & 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and

Cosmetics Act indisputably are used for medicinal purposes. Once the drugs are said to be used for medicinal purposes, it cannot be denied that

they are acknowledged to be the drugs which would come within the purview of description of the expression ""medicinal purposes"".

I have heard the learned counsel for the parties and gone through the record carefully.

At this stage, this court sees no reason to doubt the recovery, if any, made by investigating agency on 24.8.2017, after having received a secret

information from the shop and car of bail petitioner. Similarly, there can be no dispute that save and except drugs namely Altorex, Onerex,

Lomotil, Alprawin 0.5 and Alprawin 0.25, all drugs namely Jagdol X, Tranzex Plus and Parvon Spas Plus, do not fall under Narcotic Drugs &

Psychotropic Substances Act and they are covered under Drugs and Cosmetics Act as has been categorically reported by FSL in its report. Drugs

namely Onerex, Lomotil and Trimtol, Alprawin 0.5 and Alprawin 0.25 fall under Narcotic Drugs & Psychotropic Substances Act and as per

report of FSL they contain prohibited drug namely Codeine Phosphate, Diphenoxylate Hydrochloride, Atropine Sulphate and Alprazolam.

It is quite evident from the record that at the time of search, bail petitioner informed the investigating agency that he possesses valid licence to

store drugs as named herein above, but since he was unable to produce licence at that time, case came to be registered against him. Further, it is

clearly evident from communication dated 13.11.2017 sent by Drug Inspector Una in response to query put by investigating agency that bail

petitioner possesses valid licence for storage of drugs namely Lomotil, Trimtol plus, Alprawin 0.5 and 0.25, Altorex cough syrup, Onerex cough

syrup and Jagdol. He has also reported that all drugs are allopathic drugs and come under Schedule H and H1 of Drugs and Cosmetics Act and

bail petitioner possesses valid licence for storage of these drugs. Rule 52A of Narcotic Drugs & Psychotropic Substances Rules is reproduced as

under:

CHAPTER VA

POSSESSION, TRANSPORT, IMPORT INTER-STATE, EXPORT INTERSTATE, SALE, PURCHASE, CONSUMPTION

AND USE OF ESSENTIAL

NARCOTIC DRUGS

52A. Possession of essential narcotic drug.- (1) No person shall possess any essential narcotic drug otherwise than in accordance

with the provisions of these rules.

(2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in

accordance with the provisions of these rules.

(3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not

more than the quantity mentioned in the Table below, namely: -

TABLE

Sl.

Name of the essential narcotic drug Quantity

No.

Morphine and its salts and all preparations containing more than 0.2 per cent of Morphine 500 Milligrammes

Methyl morphine (commonly known as ""Codeine"") and Ethyl Morphine and their salts (including

Dionine), all dilutions and preparations except those which are compounded with one or more other

ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a 2000 Milligrammes

concentration of not more than 2.5% in undivided preparations and which have been established in

therapeutic practice

Dihydroxy Codeinone (commonly known as Oxy-codone and Dihydroxy Codeinone), its salts (such as

Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, Tebodol and the like), its

250 Milligrammes

esters and the salts of its ester and preparation, admixture, extracts or other substances containing any

of these drugs

Dihydrocodeinone (commonly known as Hydrocodone), its salts (such as dicodide, Codinovo,

Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester, 320 Milligrammes

and preparation, admixture, extracts or other substances containing any of these drugs.

Two transdermal

1-phenethyl-4-N- propionylanilinopiperidine (the international-nonproprietary name of which is patches one each of

Fentanyl) and its salts and preparations, admixture, extracts or other substances containing any of these 12.5 microgram per

drugs hour and 25

microgram per hour.

Provided that the Controller of Drugs or any other officer authorized in this behalf by him may by special order authorize in Form 3B,

any such practitioner to possess the aforesaid drugs in quantity larger than as specified in the above table: Provided further that such

authorization may be granted or renewed, for a period not exceeding three years at a time.

Explanation. - The expression ""for use in his practice"" covers only the actual direct administration of the drugs to a patient under the

care of the registered medical practitioner in accordance with established medical standards and practices.

(4) For renewal of the authorization referred to in the second proviso to sub-rule (3), APPLICATION SHALL BE MADE TO THE

Controller of Drugs atleast thirty days before the expiry of the previous authorization.

(5) (a) The Controller of Drugs may, by order, prohibit any registered medical practitioner from possessing for use in his practice

under subrule (3) any essential narcotic drug, where such practitioner -

(i) has violated any provision of these rules; or

(ii) has been convicted of any offence under the Act; or

(iii) has, in the opinion of the Controller of Drugs abused such possession or otherwise has been rendered unfit to possess such drug.

(b) When any order is passed under clause (a) of this sub-rule, the registered medical practitioner concerned shall forthwith deliver to

the Controller of Drugs the essential narcotic drug then in his possession and the Controller of Drugs shall issue orders for the

disposal of such drugs.

(6)` The Controller of Drugs. May, by a general or special order, authorize any person to possess essential narcotic drug as may be

specified in that order.

(7) A recognized medical institution may possess essential narcotic drug in such quantity and in such manner as specified in these

rules.

(8) A manufacturer may possess essential narcotic drug in such quantity as may be specified in the licence issued under rule 37 of

these rules.

(9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as maybe

specified in the licence issued under these rules.

Aforesaid Rule i.e. Rule 52A of the Narcotic Drugs & Psychotropic Substances Rules, 1985 clearly provides that a licenced dealer or a

licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these

rules. Bare reading of aforesaid provision of law and table annexed thereto further suggests that a registered medical practitioner may possess

maximum of 2000 mg of Methyl morphine (commonly known as ''Codeine'') and Ethyl morphine and their salts (including Dionine), all dilutions and

preparations except those which are compounded with one or more other ingredients and containing not more than 100 Milligrammes of the drug

per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice.

In the case at hand, as clearly emerges from report of FSL, 1.25 mg Diphenoxylate Hydrochloride i.e. other compound, is present with

Codeine Phosphate i.e. 10.0 mg per 100 ml. Similarly, result of drug namely Onerex and Lomotil also suggests that apart from prohibited drug,

there is presence of compounded drug i.e. Diphenoxylate Hydrochloride 1.25 mg and Atropine Sulphate 0.25 mg.

Rule 65A of the Narcotic Drugs & Psychotropic Substances Rules, 1985 provides that no person shall sell, purchase, consume or use any

psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945 provided that sale, purchase, consumption or use of

psychotropic substances specified in Schedule I shall be only for the purposes mentioned in Chapter VIIA. Similarly, Rule 66 of the aforesaid

Rules provides that no person shall possess any psychotropic substance for any of the purposes covered under 1945 rules, unless he is lawfully

authorized to possess such substance for any of the said purposes under these rules, provided that possession of a psychotropic substance

specified in Schedule I shall be only for the purposes mentioned in Chapter VII A. Rule 67A of Chapter VIIA of the aforesaid rules provides as

under:

67A Special provisions for medical and scientific purposes

Notwithstanding anything contained in the foregoing provisions of these rules

(a) a narcotic drug and psychotropic substance may be used for -

(i) scientific requirement including analytical requirements of any government laboratory or any research institution in India or abroad;

(ii) very limited medical requirements of a foreigner by a duly authorized person of a hospital or any other establishment of the

government especially approved by that government;

(iii) the purpose of de-addiction of drug addicts by government or local body or by an approved charity or voluntary organisation or

by such other institution as may be approved by the Central Government(or the authority exercising the powers under sub-clause (iv)

of clause (a);

(iv) the purpose of restraining or immobilizing wild animals by or under the authority of the Government and approved by that

Government;)

(b) persons performing medical or scientific functions shall keep records concerning the acquisition of the substance and the details of

their use in Form 7 of these rules and such records are to be preserved for at least two years after their (sic)

(c) a narcotic drug and psychotropic substance (or the authority exercising the powers under sub-clause (iv) of clause (a) may be

supplied or dispensed for use to a foreigner pursuant to medical prescription only from the authorized licensed pharmacists or the

authorized retail distributors designated by authorities responsible for public health).

It is amply clear from bare reading of aforesaid provisions especially Rule 67A(b) that narcotic drugs and psychotropic substances can be used

for performing medical or scientific functions and persons performing such duty shall keep records concerning acquisition of such substances and

the details of their use in Form 7 of these rules and such records shall be preserved atleast for two years after their acquisition. As has been taken

note above, under Rule 65A, no person can sell, purchase, consume or use any psychotropic substance save and except in accordance with Drugs

and Cosmetics Rules, 1945 and sale, purchase, consumption or use of the psychotropic substance specified in Schedule I shall be only for the

purposes mentioned in Chapter VIIA.

Needless to say, licence for selling drugs as prescribed under Drugs and Cosmetics Act is issued under Drugs and Cosmetics Rules 1945. In

the case at hand, Mr. M.L. Chauhan, Additional Advocate General after having perused communication dated 13.11.2017, was unable to suggest

or state that bail petitioner was not having valid licence to possess drugs which have been otherwise termed to be Schedule H drugs.

At this stage, this Court, after having perused material available on record, especially intimation /communication dated 13.11.2017 sent by

Drug Inspector Una, is convinced and satisfied that the bail petitioner was having valid licence to possess/store drugs allegedly recovered from his

car and shop. Drug Inspector has categorically stated in his communication dated 13.11.2017 that the drugs namely Lomotil, Trimtol Plus, Altorex

Cough Syrup, Onerex cough syrup and Jagdol are allopathic drugs and are covered under Schedule H and H1 of Drugs and Cosmetics Act,

which can be sold and stored by a licence holder, under Drugs and Cosmetics Act/Rules, 1945.

At the cost of repetition, it may be stated that though perusal of report of FSL suggests that few drugs namely Altorex, Onerex, Lomotil,

Alprawin 0.5 and Alprawin 0.25 contain prohibited drugs namely Codeine Phosphate, Diphenoxylate Hydrochloride, Atropine Sulphate and

Alprazolam, but as has been taken note above, licenced chemist/dealer can possess/store prohibited drugs within prescribed limits as provided

under Rule 52A of the Narcotic Drugs & Psychotropic Substances Rules.

Though, aforesaid aspect of the matter is to be considered and decided by the learned trial Court on the basis of evidence adduced on record

by the prosecution but this court after having carefully perused the record, which has been otherwise taken note above, sees no reason to let the

bail petitioner incarcerate in jai, for indefinite period, more particularly when he is already in jail for more around five months. Guilt, if any, of the

bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence but at this stage, this

Court, after having taken note of the fact that bail petitioner was having a valid licence to possess the drugs allegedly recovered from his shop and

car, sees no reason to curtail his freedom, which is of paramount consideration as far as this Court is concerned. Apart from above, this Court

is/was unable to find any material adduced on record by investigating agency, from where it can be inferred that in the event of petitioner''s being

enlarged on bail, he may flee from justice or may not remain available for trial, rather, petitioner being a local resident, shall always remain available

for trial.

By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by the Hon''ble Apex Court that 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. The Hon''ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:-

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. 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 India , 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 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 propose of giving him a taste of

imprisonment as a lesson.

Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and

others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab,

(1980) 2 SCC 565, laid down the following parameters for grant of bail:-

No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the

view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations

of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant

or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the

Constitution Bench decision in Sibbia''s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under

section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to

do. In any event, this is the legislative mandate which we are bound to respect and honour.

The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on

conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused''s likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend

the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian

Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of

common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice

should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified

detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in

the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of

events, the accused is entitled to an order of bail."" (Emphasis supplied)

Hon''ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra (2014)16 SCC 623, has held as under:-

Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being

brought before a Court"", the present provision postulates the accused being ""brought before a Court other than the High Court or a Court of

Session"" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State( Delhi Admn) (1978) 1 SCC 118,

there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be

immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have

easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this

jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan

Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-

bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of

reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of

Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or

prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate

while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that

can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns

the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this

is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he

is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that

the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken,

curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the

Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of

the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the

science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. ''where there is a right

there is a remedy''. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of

not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact

that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established

principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some

salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence

and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in

custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the

word ''custody'' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power

of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher

Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if

circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and

intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ''Committal

of cases to the Court of Session'' because of a possible hiatus created by the CrPC.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon''ble Apex Court has held as under:

This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude,

while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure

that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is

neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an 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. It was enunciated that since the jurisdiction

to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by

balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge,

is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or

denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial

prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.

Needless to say object of the bail is to secure the presence of the accused in the trial and proper test to be applied in the solution of the

question whether bail should be granted or refused is whether it is probable that the party will appear to take its trial. Otherwise also, normal rule is

of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the

punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles

to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

In view of above, present petition is allowed and the petitioner is ordered to be enlarged on bail in the aforementioned FIR, subject to his

furnishing personal bonds in the sum of Rs.10,00,000/-(Rupees Ten Lakh) with two local sureties in the like amount to the satisfaction of

concerned Chief Judicial Magistrate, with following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of

hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from

disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

(e) He shall deposit passport, if any, held by him, with the Investigating Officer.

It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to

move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal

of this petition alone. The petition stands accordingly disposed of.