SOODHA SOMANA Vs. STATE

JUDGEMENT

(1.) The petitioners assail the order for cancellation of bail passed by the learned Sessions Judge, Koraput, Jaypore. Bail had been granted by the learned Sub-divisional Judicial Magistrate, Jaypore.

(2.) The facts giving rise to the present application are as follows: Both the petitioners were arrested for the alleged commission of offences u/Ss. 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the 'Act'). On the night of 15 /16-1-1990, police personnel of Andhra Pradesh and Orissa raided their house in connection with Crime Case No. 12 of 1990 Chinthapalli Police Station, Visakhapatnam. Andhra Pradesh. According to the prosecution, various quantities of different narcotic substances like Bhang, Ganja and Opium found in the house were seized in presence of both the petitioners. On being moved for grant of bail, the learned Sub-Divisional Judicial Magistrate released the petitioners on bail observing that the offences are not punishable with imprisonment for life or death; there is no averment of previous conviction; some other members of the family barring, the present petitioners were residing in the house; there was no material to show that the articles in question were seized from the exclusive and conscious possession of the petitioners; and, there was no averment of apprehension of absconding or tampering of evidence by them. So far as petitioner No. 1 is concerned, it was noted that he was an old man and was ailing. On being moved for cancellation of bail' the learned Sessions Judge passed the impugned order. Apart from referring to the factual position to highlight the infirmities in the reasoning indicated by the learned Sub-Divisional Judicial Magistrate for grant of bail, reference was also made to Sections 35 and 54 of the Act. Section 54 postulates a presumption that a person who is found in possession of narcotic substances, has committed an offence of the nature detailed in Chapter IV which inter alia includes those covered under Sections 18 and 20 of the Act, until contrary is proved. In other words, the onus is placed on the person found in possession of narcotic substances to prove that he has not committed the aforesaid offences. Section 35 similarly postulates presumption of existence of culpable mental state in any prosecution for an offence under the Act and it further mandates the accused to establish that he had no such culpable mental state, which has to be done not merely by preponderance of probability, but by offering proof beyond reasonable doubt. He also referred to the stringent punishment provided in relation to the offences in question. It need be noticed here that minimum punishment in respect of offence under Section 18 of the Act is custodial sentence of not less than ten years with higher limit of twenty years, coupled with fine varying between rupees one and two lakhs. Judged in this background, he cancelled the bail granted to the petitioners.

(3.) Legality of the order is assailed in this revision, on the ground that there was nothing irregular on the grant of bail by the learned S.D.J.M. who had considered the relevant factors and materials on record. Additionally, it is submitted that there being no allegation of any misuse of bail granted, the learned Sessions Judge should not have accepted prayer for cancellation of bail. Elaborating, it is submitted that considerations for grant of bail are different from those which can be pressed into service for cancellation of bail. Rightly or wrongly if bail has been granted, it is submitted, the same should not be interfered with unless compelling circumstances exist. On behalf of the State it is submitted that relevant provisions of law were not kept in view while granting the bail, and therefore, cancellation was imperative.