Withholding bail cannot be used as measure of punishment: J&K HC

The court granted bail to a person who was rejected bail by trial court and noted that bail cannot be rejected on sole reason of seriousness of crime


The Jammu and Kashmir High Court’s Jammu bench has granted bail to a person accused under Narcotic Drugs and Psychotropic Substances Act (NDPS), while observing that withholding of bail cannot be used as a measure of punishment, and that bail cannot be rejected to teach a lesson as guilt is yet to be proved.

The applicant, after being denied bail by the trial court, filed a bail application before the High Court. He was arrested as police found 500 gms of charas , in the vehicle that he was driving, and a chargesheet was filed against him under the NDPS Act. The applicant sought on bail on the grounds that the charas found, was of an intermediate quantity and the challan has already been produced before the trial Court therefore the question of tampering evidence does not arise.

The single judge bench of Justice Sanjay Dhar firstly dealt with the question whether the court can entertain a bail plea when it has already been rejected by a lower court. The court cited judgments of the Supreme Court and held that rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 CrPC on same facts.

The court observed that the lower court rejected the bail due to severity of punishment and seriousness of offence alleged to have been committed. The court noted that as per the trial court  the offence is serious in nature and the same affects the society in general and the young generation in particular and hence bail was rejected. The court pointed out that the quantity of contraband recovered from the possession of the petitioner does not fall within the parameters of commercial quantity and hence does not invite the provision of section 37 of NDPS that imposes additional conditions for securing bail if contraband is of commercial quantity.

Hence, the court observed that the bail should be considered under provisions of section 437 of CrPC. The court held, “The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.”

The court held that the grounds on which the bail was rejected by the trial court such as seriousness of crime and its effect on the youth “cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established”. The court held thus, “Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment.”

The court observed that the applicant was arrested in September, 2020 and “his further incarceration will be nothing but imposition of punishment without trial of the case”. The court stated that since there was nothing on record to show that the applicant was a habitual offender or that there is any further recovery to be made from him and since further incarceration cannot be justified, bail should be granted.

While finally granting bail, the court held, “If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial Court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved.”

Thus, bail was granted on furnishing personal bond of Rs. 50,000 with one surety of like amount and on the condition that the applicant shall not leave J&K, will attend all hearings before trial court and will not tamper with prosecution witnesses.

The complete order may be read here.



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