2018 (7) TMI 2344

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....ices to the customers and, therefore offences under Section 15/18 NDPS Act, were found to have been committed by the accused and, accordingly, a case bearing FIR No. 17/2018 was registered against them for the commission of the aforesaid offences at police post, Palhallan, with which the investigation ensued. The samples were taken which were sent to J&K Forensic Science Laboratory, Srinagar, for examination and analysis. The statements of the witnesses conversant with the facts of the case were recorded and the site plan was also prepared. The accused were arrested on 19.01.2018. On the completion of the investigation of the case, a charge sheet in terms of Section 173 Cr. PC was laid against the accused/applicants before the Court of the learned Sessions Judge, Baramulla. 2. The applicants filed an application for the grant of bail in their favour in the FIR aforesaid before the Court of the learned Additional Sessions Judge, Baramulla, which came to be rejected by an order dated 17.04.2018. Aggrieved by this order, the applicants filed another application before this Court for the grant of bail in their favour inter-alia, on the grounds, that the charge-sheet has been laid ag....

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....n in AIR 1978 SC page 179 wherein it has been held as under:- "17. It is significant to note that under S. 397, Cr. PC, of the new code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under Sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S. 435 (4), Cr. PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under Section 435 (1) Cr. PC. of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S. 439 (2) Cr. PC. to cancel bail after the Sessions Judge had been moved and an or....

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....e to allow the accused to be admitted to bail under the provisions of 497 Cr. PC. The Learned Judge has also stated that drug peddling in the state has taken the shape of trade and the people involved in such type of nefarious crimes appear to be under the notion that they can beat the law and continue to spoil the society by their evil intentions. To nip this evil, the duty of the responsible citizens of the society become more pronounced. The learned trial court has proceeded to state in the order that the Court is cognizant of the fact that the quantity recovered from the accused is an intermediate one but its horrendous effects on the health of the gullible individuals who are lured and entrapped in this quagmire make one to cry his heart out and, accordingly, the learned Judge concluded that the accused is not entitled to bail. 8. What gets revealed from the order of the trial court is that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity but it is an intermediary one and, therefore, the application of the applicants had to be considered under the provisions of 497 Cr. PC. It is only on th....

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....ment 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 10.The word "judicial discretion" has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains." Even so, it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants. It is always known, it is different in different m....