TaxTMI 
TaxTMI 
2018 (8) TMI 1907
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.... 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 presumably right reasons, tries to encroach up....
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...., 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 material was sent to Chemical Examiner and ....
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....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 petitioner has been in custody since 22.03.2017 and despite pa....
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.... 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 manner. This part of the Section is nothing but luxury of lan....
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....ation 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 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 i....
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.... 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 individual which shall be the determining factor for judging the constitutional validity of the state action. The relevant part of the judgment is as under:- "....
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....t 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 Coleman's case, it laid down two interrelated propositions, namely. "First, it is not the object of the authority making the law impairing the right of the citizen nor the form of a....
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....re 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 disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under ....
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....lso 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 conclusion, of any degree that such a person is `guilty' of an offence. Although in certain cases, there are presumptions under which an accused is taken to be akin to guilty till he rebuts that presumption. However, even t....
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....- (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 provision came to be considered by the Hon'ble Supreme Court in the judgment rendered in 2017 AIR (SC) 5500 - Nikesh Tarachand Shah v. Union of India and Another. After considering all the provisions of the Constitution, previous precedents as contained in the judgm....
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....so, 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 various factors set out in paragraph 18 of the judgment are to be looked at. Under Section 45, the Court must be satisfied that there are reasonable grounds to believe that the person is not guilty of such offences and that he is not likely to commit any offence while on bail." In this ve....
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.... 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 prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not g....
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....tisfaction. 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:- "Under the circumstances the writ petitions are disposed of by holding that (1) Section 32A does not in any way affect the power of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act c....
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....s 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 this language to be applied in a discriminatory manner, differing from Court to Court. This may also lead the Court, to just writing that it has the satisfaction as prescribed under Section 37(1)(b)(ii) and to complete the formality of language. So despite the judges being trained in the job of appreciating the facts and circumstances, the criterion embedded in the language of Section 37(1)(b)(ii) itself being amenable to ....
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....im 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 person would be in jail, because a Court may not be able to record the satisfaction as required under Section 37 of NDPS Act. Therefore, in its applicability, like the provision of Section 45 of the Money Laundering Act, Section 37(1)(b)(ii) is rendered discriminatory and hence, arbitrary. Otherwise also, the learned counsel for the petitioner appears to be right in arguing that the two conditions as prescribed in Section 37(1)(b....
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....tions 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 inversion of the presumption of innocence of the accused as one of the factors for declaring the Section 45 of the Prevention of Money Laundering Act, 2002 ultra vires and observed as under:- "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 C....
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.... 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 arbitrary. Section 37(1)(b)(ii) makes the application of the conditions mentioned in this provision to be applicable only if the Public Prosecutor so desires. As per the language of this Section where the Public Prosecutor does not oppose the bail application then Court is not required to apply its mind for arriving at a satisfaction and belief as prescribed in Section 37(1)(b)(ii), despite the fact that the quantity of contraband involved may be many times more than the commercial quantity. So....
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....lved 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 (supra), wherein it has implied that if such language extends in operation not only to the offence under the special Act but also to any offence under any other legal provision where such conditions are not required to be applied for grant of bail then such language enters the realm of unconstitutionality. Therefore, this language is also arbitrary on that count because it requires the Court to satisfy itself that the petitioner is not likely to commit any offence on the earth while on bail. Had this Sec....
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....asis 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. Since the second part of Section 37 (1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. There is no rational way for a Court to record its satisfaction or to arrive at this satisfaction qua possible future conduct and mental state of an accused. Any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guess work, regarding the p....
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....ct 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 on the ground that his bail is being opposed by the State for the reasons which has direct effect on his fundamental rights and are discriminatory, arbitrary, irrational, unreasonable and unjust and thus violate his right under Article 21 of the Constitution. It is trite law that the Court has to chase the injustice wherever it is found and that in case of conflict between a provision of law and the fundamental right of a citizen, as interpreted by the Hon'ble Supreme Court, it is the fundamental right ....