TaxTMI 
TaxTMI 
2018 (8) TMI 1907
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....started asserting more and more power to regulate the individual freedom. Hence, the freedom of the individual also metamorphosed into a regulated freedom, called liberty. However, to ensure that even this liberty is not further encroached upon or ruthlessly trampled, the man, in more civilized societies, has created an instrumentality, called the Constitution, the basic document of Governance, providing for liberties of individuals and for regulation by State. Therefore, in the modern State, individual is entitled to only those rights/ liberties which are permitted to him by the Constitution, as regulated by the might of the State. The `right' of the individual, therefore, is restricted to only that `might' of the individual which is permitted by the State. However, there are certain rights, which are so fundamental to the human existence that, even if the individual so desired, these cannot be permitted to be ceded by him. Hence, in the modern constitutionalism, despite the State being mighty entity, individuals also have been given certain basic rights which cannot be taken away by the State. But the State being State, sometimes for right reasons and sometimes for presum....
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....ave suspicion upon the petitioner. Therefore, the petitioner was apprehended by the Police Party. On being apprehended, the petitioner was told that the above said ASI suspected that the petitioner was carrying some intoxicating substance and that he was required to be searched. Therefore, the petitioner was, allegedly, given an option; whether he wanted to be searched in presence of some gazetted officer or Magistrate. The petitioner is alleged to have reposed faith in the above said ASI Gurnam Singh and expressed no objection to his search by the Police party present on the spot. The Police, allegedly; made effort to join some independent person in the process but none came forward. Therefore, the search of the person of the petitioner was conducted by the said ASI Gurnam Singh. During the search, a plastic container containing 300 grams of intoxicating powder was allegedly; recovered from the back pocket of pant/ lower worn by the petitioner. The same was saealed into parcel and taken into possession. Accordingly, the above said FIR was registered on the basis of writing sent to the Police Sation by the abovesaid ASI Gurnam Singh. As per the allegations, the sample of the seized....
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....alse case. It was further pleaded that the petitioner is not involved in this case at all. The recovery against the petitioner has been concocted by the Police. The Police have not followed the procedure prescribed under Section 50 of NDPS Act, as required by the law as laid down by the Courts in several judgments. No Magistrate or gazetted Officer was actually called on the spot, nor is even shown to have been so called by the Police. No independent witness is joined by the Police at the time of search. Therefore, the safeguard provided for by the Act; under Section 51 of the Act; has also been disregarded by the Police. All these violations have been committed by the Police for the simple reason that; had the Police complied with these provisions, the Police would not have been able to frame the petitioner in this false case. It is further contended by the counsel for the petitioner that earlier also, the petitioner was involved in a false case. However, in that case, the petitioner was acquitted by the Special Court; vide its judgment dated 05.04.2017. In fact, the petitioner has never indulged in dealing with the Narcotics at all. Counsel has further submitted that the petition....
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....the right of life and liberty guaranteed to the petitioner under Article 21 of the Constitution of India. Any law in any form has to confirm to Article 21 of the Constitution. In case of conflict between the two, the `object' of the Act has to give in to the right of the individual. Fundamental right under Article 21 cannot be restricted for the sake of `object' of the Act. The judgments relied upon by the State Counsel have not taken into consideration the earlier judgments of the Large and Constitution Benches of the Supreme Court. Therefore, they are not the valid precedent on the proposition of law that only the `object' of the Act can be made basis for restricting the right given under Article 21 of the Constitution. The counsel has further argued that like any other citizen, he is also entitled to be considered for grant of bail under more liberal provisions of Section 439 of Cr.P.C. Applying strict provisions of Section 37 of NDPS Act is a discrimination with him. Still further, it is argued that otherwise also the requirements prescribed under Section 37(1)(b)(ii) are totally irrational, defy logic, and are bound to be applied in discriminatory and arbitrary man....
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....which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." Section 37 of NDPS Act reads as follows :- "37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27 A and also for offences involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is....
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....id down that Article 21 confers protection not only against the executive action but also against a legislation, which deprives a person of his life and personal liberty, unless the law for deprivation is reasonable, just and fair. It was further held that it is not enough for the law to prescribe some semblance of the procedure. A procedure for depriving a person of his life and personal liberty must be eminently just, reasonable and fair. If the Court finds that it is not so, the Court will strike down the same. Therefore, the effect of the judgment of the Hon'ble Supreme Court in Maneka Gandhi is that the law required under Article 21 of the Constitution of India for regulating the life and liberty of a person has to be more than mere law of any kind. It has to be just and reasonable both procedurally and substantially. Still further Supreme Court in this case approvingly followed the large Bench (consisting 11 Judges) judgment of the Supreme Court rendered in R.C. Cooper Vs. Union of India, 1970 AIR (SC) 564 and held that it is not the `object' of the state action or the `form' thereof, which is material, it is the `direct effect' upon the right of the individua....
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....w, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's right." "We are of the view that the theory that the object and form of. the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme...................." "In our judgment, the assumption in A. K. Gopalan's case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct." The decision in R. C. Cooper's case thus overturned the view taken-in A. K. Gopalan's case and, as pointed out by Ray, J., speaking on behalf of the majority in; Bennett Colem....
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....undamental rights guaranteed by the Constitution it is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal." In a more recent judgment in Shayra Bano Vs. Union of India, 2017(5) RCR (Criminal) 878, the Supreme Court dwelt upon the meaning of arbitrariness as under:- "281. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers Vs. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and dispropor....
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.... to confirm to the above-stated test of protection guaranteed by Articles 14 and 21 of the Constitution of India. The criminal jurisprudence, ordinarily, presumes a person to be innocent unless proved to be guilty. This is also not any concession given to him by any system or the State. This is his birth right. An individual is born as innocent. He remains innocent unless proved to be guilty through validly prescribed law and the procedure. Any procedure which directly takes away this presumption has to be treated as unreasonable and unfair. Therefore, the entire burden of proving the guilt of a person accused of an offence is upon the prosecution. Although Section 3 of the Indian Evidence Act does not make any distinction, in degree of proof required to prove a fact in civil or criminal litigation, but in view of the fact that the most valuable right of the individual is involved, by enormous precedents, to get an accused convicted of the offence, the prosecution is required to prove the guilt of the accused beyond reasonable doubt. This proof is to be adduced during a fair and properly conducted trial in accordance with law. Before that, there cannot be any presumption or any ....
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....ything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail; Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or inform, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- xx xx xx xx xx xx (2) The limitation on granting of bail specified in sub-section(1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." The constitutional validity of this pr....
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....win conditions of Section 45 will have first to be met. This again leads to an extremely anomalous situation showing that Section 45 leads to manifestly arbitrary and unjust results and would, therefore, violate Article 14 and 21 of the Constitution. xx xx xx xx xx xx Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. For this purpose, he referred us to Amarmani Tripathi (supra) at para 18, in which it was stated that, for grant of bail, the Court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence being repeated has also to be seen. It is obvious that the twin conditions set down in Section 45 are a much higher threshold bar than any of the conditions laid down in paragraph 18 of the aforesaid judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the v....
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....he Hon'ble Supreme Court to uphold the Section 45 of the Money Laundering Act 2002, rather the provision was held to be unconstitutional. So, it is obvious that such a construction has not found favour with the Hon'ble Supreme Court itself. The provisions of Section 37 of NDPS Act itself come before the Hon'ble Supreme Court for consideration in various cases but only qua essentiality of its applicability. It is relevant to reproduce some of the judgments of the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 held as under:- "As the provision itself provides that no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than pri....
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.... a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail." Therefore, once again the Supreme Court held the conditions of Section 37 to be applicable with all its rigour of language of this Section, instead of the whittled down interpretation of this language as interpreted by the Supreme Court in case of Shiv Shanker Kesari's case (supra). While considering the applicability of Section 37 of NDPS Act at the stage of suspension of sentence, the Supreme Court, in case of 2000 (4) RCR (Criminal) 275 Dadu @ Tulsidass Vs. State of Maharashtra held as under:- ....
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....se importance to the Society, although the language of this Section, read as it is may have been violative of the Articles 14 and 21 of the Constitution of India. However, the dilemma of the judicial effort qua such language becomes evident for the simple reason that to bring it within the vires of the Constitution, the language had to be interpreted as laying down different tests meant for the validity of the satisfaction of the Court, as contemplated by Section 37. These tests range as under:- (a) Prima facie satisfaction. (b) More than prima facie satisfaction but satisfaction less than the satisfaction required for recording of not guilty. (c) Full satisfaction as to the existence of reasonable grounds to believe that accused is not guilty, i.e. as is the bare language of the Act. Besides this, the above three kinds of satisfaction are required to be: (i) The satisfaction being limited to the purpose of bail. (ii) The satisfaction being supported by material and facts on record. The multi-cotomy of the ways in which Court can be led to apply the language of Section 37 itself shows the possibility and amenability of ....
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....rt records its satisfaction as to the conditions prescribed under the above said clause of Section 37 of NDPS Act. This can also lead to a thoroughly absurd situation, taking for example, the case of a person who, at initial stage, is just named as an accomplish in a case under the NDPS Act, without there being anything else against him in the FIR; but his co-accused being arrested with commercial quantity. The Court can grant him an anticipatory bail in such a situation and most probably, he is likely to get the concession of anticipatory bail. No compliance of Section 37(1)(b)(ii) would be required. Whereas his co-accused arrested with commercial quantity will not be granted bail by the Court; except after recording its satisfaction as to the conditions specified in Section 37 of NDPS Act. Taking the example further, the former person who has been granted anticipatory bail, can be found to be the person from whom the later had received the seized consignment of commercial quantity and the supplementary challan can be filed against him also, for possessing the same commercial quantity. But in this case, the first person can, very well, continue to be on bail, whereas the second pe....
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....tion 27 and also for offences involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being force, on granting of bail.] [2] [Section 2(viia): "Commercial quantity", in relation to narcotic drugs and psychotropic substance means any quantity grater than the quantity specified by the Central Government by notification in the Official Gazette.] In other words, Section 37 departs from the long established principle of presumption of innocence in favour of the accused person until proved otherwise." However, in case of Nikesh Tarachand Shah (supra), the Hon'ble Supreme Court has considered the invers....
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.... stage of trial. If a language of a Statute does not satisfy the test of constitutional validity then that language cannot be retained on the statute book at all, except at the cost of creating avenues for its discriminatory use. If by leaning towards the presumption of the validity of a Statute, a particular language used in Statute is upheld, by reading it in a language different than the language actually used in the Statute, so as to assign it a meaning within the scope of constitutional validity, then it can create a dichotomy or multifariousness in its operation. In such situation, it is bound to be used in different manners by different Courts. One Court can apply it in a read down language while the other Court may insist upon the actual language used in the Statute. This can be clearly seen in judgments clarifying and applying the language by adopting different degrees of satisfaction of Court. So in such a situation, possibility of discriminatory application of the same provision qua two different persons cannot be ruled out. This would be violative of Article 14 of the Constitution of India. There is another aspect of this language which makes it discriminatory and ar....
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....i) which may be intended to retain the constitutional validity of the provision, what the Court is required to consider is that, in all reasonableness, the petitioner is not involved in the offence or that prima-facie the ingredients of the offence are not made out. There is no problem to this extent. The Couts being trained in the art of appreciation and used to filtering the grain from the chaff of the documents/ evidence, can very well come to tentative satisfaction as to whether a person is involved in the offence or not. Therefore, despite the language of first part of Section 37(1)(b)(ii), may be, not being in conformity in the principles of jurisprudence, can still be interpreted in a way which can be reasonably applied by the Courts in its practicability. However, more problem lies with the second part of Section 37 (1)(b)(ii), which requires the Court to be satisfied that there are reasonable grounds for declaring that the accused is not likely to commit `any offence' while on bail. This part of Section 37(1)(b)(ii) militates against the rationale and reasoning considered by the Hon'ble Supreme Court in the above said case of Nikesh Tarachand Shah's case (su....
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....d to arrive at any degree of satisfaction as to whether a person would indulge in set of facts after coming out of the custody. The crime being based on mens-rea is a function of mental state of an individual, which cannot be guessed by any Court in advance, by any means. Moreover, as observed above, it is not the guess-work by Court qua possibility of future conduct and mental state of accused, which is required under second part of Section 37(1)(b)(ii). It is the reasonable `satisfaction' on the basis of the material on record which is required. By extension of any human logic, it cannot be said that the Court can record, any degree of satisfaction, based on some reasonable ground, as to whether a person would commit an offence or whether he would not commit an offence after coming out of the custody. Neither the Court would be able to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, nor would the Court be able to record a satisfaction that the accused would not commit any offence after coming out of the custody. Hence, the second part of Section 37(i)(b)(ii) requires a humanly impossible act on the part of the Court. S....
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....Court, unless declared as ultra vires of the Constitution. However, since the Hon'ble Supreme Court in case of Shiv Shanker Kesari's case (supra) has held that satisfaction of a Court can be for a `limited purpose' of considering the question of releasing the accused on bail also and in the recent judgment in case of Nikesh Tarachand Shah (supra) has again reiterated the 11 Judges Bench judgment of the Hon'ble Supreme Court and has categorically held that, it is not the `object' of the Act or the `form' and so the language or modality thereof; which is material, rather it is its `direct effect' of such state instrument, on the right of an individual which is material for the jurisdiction of the Court to grant relief of protection of right of an individual, and has held the provision similar to the one as contained in Section 37(1)(b)(ii) as ultra vires, therefore, this Court being a Constitutional Court, it would not be appropriate for it to put the citizen to legal asphyxia by refusing to entertain his reliance upon the above-said judgment of the Hon'ble Supreme Court, even for the limited purpose of granting bail, which is sought by the petitioner ....
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....nt, basically, to protect an individual against the false implication by the Police. If this protection is sought to be denied by the Police then this is one of the reasons which can lead, and is leading, the Court in the present case, to come, to a prima-facie, but reasonable satisfaction that the petitioner is not involved in the crime allegled in the present case. The second aspect is that although 300 grams of intoxicant powder is claimed to have been recovered from the petitioner and it is also found to be containing Alprazolam powder in it, however, whether the entire powder is Alprazolam or not is not clear from the facts on record. This also contributes towards the Court coming to the abovesaid satisfaction that the petitioner may not be guilty in the present case. In the considered opinion of this Court, first part of Section 37(1)(b)(ii) qua the satisfaction of the Court is fulfilled in this case. But, so far as second part of Section 37(1)(b)(ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit `any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which ....