TaxTMI 
TaxTMI 
1990 (2) TMI 327
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....d be one such circumstance which should be taken into consideration by the Court, while reaching the satisfaction that there are reasonable grounds for believing that accused is not guilty of the offence charged or levelled against him. 3. Shri Joshi advanced yet another argument, a chargesheet filed by the officers of the Narcotics Department being a complaint, the allegations made therein, are yet to be inquired into for deciding whether or not there is sufficient ground for proceeding? Thus relegating the case to the stage of inquiry under section 202, Criminal Procedure Code. This argument is based on want of proper and required Notification under section 53 of the Act. 4. Shri Khan has placed the Notification dated 4-2-1988 to counter the argument advanced by Shri Joshi. Shri Tiwari who appears for one of the applicants, has also taken the same stand as Shri Oberai. 5. The controversy associated with these petitions, as emphatically and briskly argued by Shri Oberai, is not merely legal in nature but constitutional as well. A significant departure has been made from the age old, time honoured cardinal rule of criminal jurisprudence that an accused is presumed to be in....
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....urt to be satisfied that there are reasonable grounds for believing that the accused-applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. 11. Shri Tiwari, learned counsel appearing for one of the accused applicants, contended that non obstante clause in the section should not be construed as a blanket ban on the Court's discretion to release an accused on bail. Shri Khan, however, urged that before a bail order is passed, the Court must be satisfied and the satisfaction must be based on reasonable grounds for believing that the applicant is not guilty of the offence charged. 12. The crux of the matter lies in reaching the satisfaction as contemplated by sub-section (1)(B)(II) of section 37. It may be noted that this question of reaching the satisfaction required of the Court is only in the event the Public Prosecutor opposes the application for bail. In case he does not, the question of arriving at such a satisfaction would not arise, and when the Public Prosecutor opposes the application, the opposition must not be for the sake of opposition, it must be an opposition based on solid facts and sound principle. In other word....
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....judgments. 17. The expression reason to believe occurring in section 34 of the Income Tax Act, 1922 and section 19(2) of the Prevention of Food Adulteration Act (as it stood prior to amendment), has been interpreted by the Supreme Court in several cases and it has been held that the belief must be that of an honest and reasonable person based on reasonable grounds. The belief must be held in good faith. It cannot be merely putting it differently. It was stated in A.S. Narayan Appa v. Commissioner of Income Tax, Bangalore, AIR 1967 SC 523 that the reason must have a rational connection or relevant bearing to the formation of belief. 18. The requirement of 'reason to believe' contemplates intelligent and objective determination and not mere subjective consideration of facts. 19. Although section 37 of the Act does not employ the expression 'reason to believe' but the expression 'reasonable grounds for believing' as has been used in section 37 of the Act, necessarily points to the existence of grounds which afford the reason to believe and it is in this sense that the change in expression does not make any material difference. 20. Learned counsel ap....
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....cedure prescribed by law for the deprivation of right conferred by Article 21 must be fair, just and reasonable. Just as a mala fide act has no existence in the eye of law, even so unreasonableness vitiates law and procedure alike. It is, therefore, essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair ....
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....inciple of this Rule is equally obtainable and applicable under the Indian Constitution: "..The constitutional foundation underlying the privilege is the respect a Government - State or federal - must accord to the dignity and integrity of its citizens. To maintain a "fair state- individual balance," to require the Government to shoulder the entire load"...to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth... We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or often official inv....
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....ded in the Act, having a vital bearing on the constitutional rights - personal liberty of the accused in preference to the object of the Act. 31. It needs to be clarified that any observation made while considering the individual bail petition is strictly confined to the bail order and shall not in any manner affect the evidence which may ultimately be adduced in the case/cases. 32. Now, while considering application Mari Appa v. State, M. Cri. C. 2128/89; going through the record and taking into account the non-compliance of section 50 it cannot be said that the required satisfaction based on reasonable grounds for believing that the applicant is not guilty of offence charged, can be reached or could have been reached by the Court on proper consideration of the material. He is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 20,000/- (twenty thousand) with surety in the like amount to the satisfaction of the Addl. Chief Judicial Magistrate, Mhow, for his appearance before the Court on the dates as may be fixed by the J.M.F.C., Mhow. 33. In M. Cri. C. 2035/89, Amritram v. Union of India - considering the fact that one of the co-accused has....
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...., pointed out that the law requires the accused to be taken to the Gazetted Officer for effecting search. The delay for of one hour; that accused was in custody before he was searched. The arrest as such is not a formal term and does not depend on mere drawing of formal Panchnama. It is evident from record that the accused had in fact been taken into custody, prior to or before drawing of Panchnama at 12-45. In the circumstances even without going into the technical objection and points relating to investing of police powers and the Notification issued and the Narcotic Officers to search and seize, in view of the facts as noted above, it cannot be said that the Court could have reached the satisfaction as contemplated by section 37 of the Act so as to refuse bail to the applicant. In the circumstances he is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 20,000/- (twenty thousand) with surety in the like amount to the satisfaction of the CHIEF JUDICIAL MAGISTRATE, Mandsaur for his appearance before the Court on the dates as may be fixed by the CJM, in this behalf. 36. In M. Cri. C. 35/90, Nathulal s/o Bhuwan Singh and Hiralal s/o Mangilal v. St....