SITE RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) LEARNED Single Judge while dealing with a bail application in case of recovery of 4. 650 Kg. of opium ordered to place the file before Hon'ble the Chief Justice for constituting a Division Bench to consider the various issues which in his opinion, arise in the bail application. The petitioner along with five others was found travelling on the Haghway in a Tanker, bearing Registration No. MP-09-K 1633 near Chheepa Barod, District Baran. The tranker was intercepted and on search of these five persons, certain quantity of opium was recovered. From the possession of the petitioner the opium was recovered. weighed 4. 650 Kg. Recoveries were also made from the other accused persons. A case was registered against all the five persons and charge-sheet was submitted. Separate bail applications were moved by the accused persons before Addl. Sessions Judge, Baran who rejected all the bail applications by one order dated 7. 6. 1993. One Sita Ram son of Lakshman Singh Meena filed an application for bail before this Court which was registered as S. B. Cr. Misc. Bail Application No. 2557/93 from whose possession 5. 300 kg. of opium is alleged to have been recovered. The total quantity of opium recovered from all the five accused persons was 17 Kg. It may be pertinent to mention here that prior to Sita Ram's moving bail application before learned Single Judge, two of the accused, namely, Baljeet Singh, and Bal Singh, who had also been arrested and from whose possession also 2. 650 Kg. and 1. 700 Kg. of opium was recovered, had already been granted bail by this court. The learned Single Judge therefore, granted bail to the accused Sita Ram son of Shri Lakshman Singh also vide his order, dated 10. 6. 1993. He however, while granting the bail also observed that the accused-petitioner undertakes not to repeat such offence in future. The order granting bail to Sita Ram son of Lakshman Singh was passed by our learned brother Hon'ble M. R. Calla J. Petitioner also moved an application and this application filed by Sita Ram Son of Shri Baljhaji came up for hearing before our learned brother Hon'ble V. K. Singhal J. who observed as under: "i disagree with the view taken by the learned Single Judge and, therefore, in order to have the proper adjudication if the matter, the case be placed before the Hon'blei Chief Justice for constituting a Division Bench as to whether in a case where 4. 650 Kg. of opium has been recovered boil can be granted on the ground that the accused undertakes not to repeat such offence infuture. I am of the opinion that a lenient view is not required to be taken in the matter. Simply because the other co-accused have been granted bail, the petitioner has no right for grant of bail looking to the facts and circumstances of the case, more particularly when the quantity recovered is not a small quantity as defined under S. 27 and punishable with minimum sentence of 10 years. " He referred the case to Hon'ble the Chief Justice who in turn ordered the same to be listed before this Division Bench.

(2.) WE have heared learnd Government Advocate as well as the Advocate. General on the point. WE are of the opinion that in the matters of deciding the bail application discretion of the learned Judge who is seized of the matter, cannot be fettered in any manner whatsoever. The acceptance/refusal of a bail is in sole discretion of the learned Judge before whom it is listed. Even the learned Sessions Judge has got the same powers for grant/refusal of bail as this court has as the jurisdiction is concurrent. What is required to be exercised by the Presiding Officer, is a sound judicial discretion, as the facts and circumstances would vary in each case. No hard and fast rule, in our opinion, can be laid down. In the opinion of one Judge recovery of lkg. of opium may be a big quantity while in the opinion of the other Judges irrespective of the quantity of opium whether it is 1 quintal or 2 quintals bail may be granted, if in his opinion the accused is required to be released on bail, if the circumstances of the case so warrant. These circumstances cannot be circumscribed. In fact the principles for consideration of bail applications have been considered by their Lordships of the Supreme Court and this court time and again. They are only broad principles. Even in case under N. D. P. S. Act bails have been granted/refused by various courts on different grounds. There are cases when the recovery is of 179 Kg. of opium, as was in Sahid Vs. State of Rajasthan and 40 Kg. of opium as was in Suresh Kumar Vs. State of Rajasthan (1 ). In a matter of recovery of 10 Kg. of opium though five more cases were pending against the accused-petitioner still the bail was granted by this court in Manohar Lal Vs. State of Raj. In yet another case of Madhya Pradesh High Court in Ramesh Chandra Vs. Stale (3) in the case of N. D. P. S. Act held that bail cannot be of punishment properly crops up for consideration at the conclusion of the trial. In Gudikanti Narasmnulu & others Vs. Public Prosecutor, High Court of Andhra Pradesh (4) their Lordships of the Supreme Court held: "it is desirable that the subject is disposed of on basic principle, not improvised, brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a liligative gamble decisive of a fundamental right. After -all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law"'. In yet another case State Vs. Balchand (5) their Lordships of the Supreme Court observed, "terse rule is bail and not jail". The court however, observed that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice arid must weigh with us when considering the question of bail so also the heinousness of the crime. The court also observed in the same case that at the same time any possibility of abuse can be taken care of by a direction that the petitioner will report himself before the police station once every fortnight and the bail was granted. The courts have generally considered that over-riding considerations granting/refusing bail depend on the nature and the gravity of the circumstances in which offence is committed. The position and the status of the accused with reference to the victim and the witnesses, the likelihood of jeopardising his own life being faced with the grim possibility of conviction in the case; the likelihood of tampering with the witnesses, fleeing the accused his repeating the offence; his back ground and the past antecedents coupled with the history of the case as well as of its investigation and other relevant variable grounds; but the most basic of these all are that the court has to ensure that by releasing the accused, the trial in case is not hampered and the prosecution evidence is not tampered with. There may be several other factors which can be illustrative but not exhaustive and a list cannot be made. A detailed discussion has been made by their Lordships in Sahjad Hasan's case mentioned above.

(3.) THUS, we are firmly of the opinion that in the matters of questions of facts and using discretion each learned Judges while using judicial discretion has to give respect to the orders passed by learned Judge unless the matter involved the question of law which on difference of opinion is required to be referred. In the matter of bail applications particularly in the cases of opium or otherwise the provisions of the N. D. P. S. Act by themselves lay down the parameters but at the same time it may be mentioned that neither the quantity can be quantified nor the judicial discretion of any learned brother Judge may be fettered in any manner. Each learned Judge has to decide the bail application in the light of the broad guidelines provided in innumerable cases and if chance in some cases the bench is of the opinion that the bail order has been obtained by misrepresentation or fraud or by making a misstakement or by concealing of some material fact or that the concession of the bail has been abused by the co-accused who had been granted bail by the learned brother Judge, a notice for cancellation of bail can always be issued to such an accused. This Court is never helpless in cancelling the bail but due respect has to be given to the orders passed by learned brother Judges and also Rule 65 of the Rajasthan High Court Rules. We are unable to find out any question of law involved in this case which would be answered by the Division Bench as it can never be decided that all Judges should be equally strict or equally lenient in any particular type of matter.