Let me begin at the very beginning by first and foremost pointing out that in a landmark judgment with far reaching consequences while deciding a bail application in a drug trafficking case titled Ankush Kumar @ Sonu vs State of Punjab CRM-M-30643 of 2018 (O&M) decided on 9 August 2018, Justice Rajbir Sehrawat of Punjab and Haryana High Court took the unprecedented step of venturing an in-depth analysis of constitutionality of the provisions of NDPS Act, which puts several arbitrary conditions on grant of bail. It was pointed out that, 'On mere opposition by the Public Prosecutor, to the grant of bail to the accused, this Section casts a duty upon the Court to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail. The entire controversy in this case, is regarding the above-said two conditions.' Though the Judge did not hold that the provision is unconstitutional, as he was only considering a bail application, he made several observations in the judgment to the effect that it is discriminatory, irrational and defy human logic which certainly cannot be lightly dismissed!
Bail under NDPS
To be sure, the bail provision under Narcotic Drug and Psychotropic Substances (NDPS) Act as contained in Section 37 reads as: 'No person accused of an offence punishable for offences involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.'
Needless to say, it was observed by Justice Rajbir Sehrawat that, 'Under Indian Constitution as well, the persons/citizens have been given certain rights which are fundamental to the human existence. Out of those, right to life and liberty guaranteed by Article 21 of the Constitution of India is one such right, which is considered to be of such immense importance that it cannot be suspended even for the sake of or under the other provisions of the Constitution itself still effort is made by the State to regulate even this right of the individual citizen, in the name of the ‘interest of society’ or the existence of the State. One such aspect of such Regulation of right of the individual to life and liberty is; providing for the person alleged to have committed an offence to be kept in custody; and the prohibitive conditions for release on bail. Hence, there has been continuous debate on the right of individual not to be kept in custody during pendency of the trial and the privilege of the State to keep him in custody and to prescribe rigorous conditions for his release on bail, if at all he can be. The present case also involves the same struggle between the individual’s right to life and liberty and the might of the State as reflected in the conditions prescribed under Section 37 of Narcotic and Psychotropic Substances Act for release on bail.'
Before proceeding ahead, let us first and foremost understand the background and facts of this present case as explained in the initial part of the judgment itself. The facts of the present case are that the FIR No. 35 dated 22.03.2017 was registered under Section 22 of Narcotic Drugs and Psychotropic Substances Act at Police Station Kartarpur, Jalandhar (Punjab). The allegation as contained in the FIR against the petitioner was that on 22.03.2017, ASI Gurnam Singh of Police Station Kartarpur, Jalandhar, along with other police officials was present at Bholath Road; near Maliyan Turning of the road; in the area of Kartarpur; in connection with patrol duty and checking for the bad elements. Then the petitioner was allegedly seen by the police party coming from the side of Maliyan; on foot. On seeing the police party, the petitioner tried to turn back. This led the Police to have suspicion upon the petitioner. Therefore, the petitioner was apprehended by the Police Party. On being apprehended, the petitioner was told that the above said ASI suspected that the petitioner was carrying some intoxicating substance and that he was required to be searched. Therefore, the petitioner was allegedly, given an option whether he wanted to be searched in presence of some gazette officer or a Magistrate. The petitioner is alleged to have reposed faith in the above said ASI Gurnam Singh and expressed no objection to his search by the Police Party present on the spot. The Police, allegedly, made effort to join some independent person in the process but none came forward. Therefore, the search of the person of the petitioner was conducted by the said ASI Gurnam Singh. During the search, a plastic container containing 300 grams of intoxicating powder was allegedly recovered from the back pocket of pant/lower worn by the petitioner. The same was sealed into parcel and taken into possession. Accordingly, the above said FIR was registered on the basis of writing sent to the Police Station by the above said ASI Gurnam Singh. As per the allegations, the sample of the seized material was sent to Chemical Examiner and as per the report of the Chemical Examiner, Alprazolam was found in the sample. Accordingly, the petitioner was kept in custody.
In a strong rebuttal of the police version, the petitioner has asserted that he is a law abiding citizen and that he has been roped in a false case, to increase the statistics of the Police; during the special drive launched against the Narcotics. In fact, there was no recovery from the petitioner nor was he arrested from the spot, as claimed by the Police. The petitioner was picked up by the Police from his locality on 19.03.2017 from near the place of worship of Peer Di Jagah; in the presence of his brother Lalit Kumar and he was brought to the Police Station and illegally detained there. Subsequently, the petitioner was involved in the present false case by the Police.
Be it noted, the petitioner had filed an application for releasing him on bail pending trial before the Special Judge, Jalandhar. However, the Court of Special Judge, Jalandhar dismissed the bail application filed by the petitioner by observing that the petitioner was found in conscious possession of 300 grams of intoxicating powder. Hence, in view of the rigour of Section 37 of NDPS Act, he was hold to be not entitled to the bail. However, a perusal of the order passed by the Special Judge shows that the Special Judge has adverted to only the condition mentioned in Section 37(1)(b)(ii), in so far as it has expressed itself, to say that the petitioner was found in conscious possession of the intoxicating material. However, as further required under Section 37(1)(b)(ii), the Special Court has not recorded its satisfaction for believing whether the petitioner is likely to commit any offence or not while on bail. However, recording of this satisfaction by the Special Court may not be necessary because the Special Court has not released the petitioner on bail, rather it has dismissed the bail application filed by the petitioner.
Of course, feeling dissatisfied with the order passed by the Special Court and to secure his liberty, the petitioner has preferred the present application under Section 439 CrPC for grant of bail, pending trial in the above said case.
As it turned out, while arguing the bail applications, the counsel for the accused made a submission before the Bench that any other citizen, the accused is also entitled to be considered for grant of bail under more liberal provisions of Section 439 of CrPC. It was further contended that applying strict provisions of Section 37 of NDPS Act is a discrimination with him. Relying on recent judgment of the Supreme Court in Nikesh Tarachand Shah vs Union of India and another, it was contended that a similar provision as contained in Section 45 of the Prevention of Money Laundering Act, 2002 has been held to be unconstitutional by holding that the importance of the ‘object’ of the Act cannot be made a ground to trample the right of life and liberty guaranteed to the petitioner under Article 21 of the Constitution of India.
While arguing the case, the learned counsel for the petitioner has repeated the arguments mentioned above; to the effect that the petitioner was picked up by the Police three days in advance and he was framed in a false case. It was further pleaded that the petitioner is not involved in this case at all. The recovery against the petitioner has been concocted by the Police. The Police have not followed the procedure prescribed under Section 50 of NDPS Act, as required by the law as laid down by the Courts in several judgments. No Magistrate or gazetted Officer was actually called on the spot, nor is even shown to have been so called by the Police. No independent witness is joined by the Police at the time of search. Therefore, the safeguard provided for by the Act; under Section 51 of the Act; has also been disregarded by the Police. All these violations have been committed by the Police for the simple reason that had the Police complied with these provisions, the Police would not have been able to frame the petitioner in this false case. It is further contended by the counsel for the petitioner that earlier also, the petitioner was involved in a false case. However, in that case, the petitioner was acquitted by the Special Court; vide its judgment dated 05.04.2017. In fact, the petitioner has never indulged in dealing with the Narcotics at all. Counsel has further submitted that the petitioner has been in custody since 22.03.2017 and despite passage of about one and half years, the prosecution has examined only three witnesses. So, the trial is likely to take a long time. Therefore, the petitioner is entitled to be released on bail pending trial.
Discriminatory In View Of Nikesh Tarachand Shah Ratio
Simply put, on the contention based on Supreme Court judgment in Nikesh Tarachand Shah, the Court observed that in the said case, one of the grounds for holding the provision of Section 45 of Money Laundering Act, 2002 as unconstitutional was that there was no prohibition in the Money Laundering Act for grant of anticipatory bail. It was observed in the said case that a person could be granted anticipatory bail under Section 438 CrPC without adverting to the conditions prescribed under Section 45 of Money Laundering Act and he can continue on bail without the Court recording its satisfaction qua the conditions prescribed under Section 45 of the Money Laundering Act.
It cannot be lost on us that the Court said quite clearly and convincingly that, 'However, if a person is somehow arrested then he cannot be released on bail except after recording of the satisfaction by the Court as to the conditions specified in Section 45 of the Money Laundering Act. Therefore, the conditions prescribed under Section 45 of the Money Laundering Act were held to be discriminatory and arbitrary. In the present case also, there is no prohibition under NDPS Act for grant of anticipatory bail.'
Going forward, the Court further said that, 'Therefore, a person can get the anticipatory bail irrespective of compliance or consideration of conditions prescribed under Section 37(i)(b)(ii), whereas, if a person is arrested, he cannot be granted bail unless the Court records its satisfaction as to the conditions prescribed under the above said clause of Section 37 of NDPS Act. This can also lead to a thoroughly absurd situation, taking for example, the case of a person who, at initial stage, is just named as an accomplice in a case under the NDPSA Act, without there being anything else against him in the FIR; but his co-accused being arrested with commercial quantity.
No Court can record a satisfaction and belief about guilt of an accused at the stage of grant of bail
As things stood, the Court observed that the mandatory requirement of the satisfaction of the Court, at the stage of grant of bail, qua the petitioner not being guilty of such an offence militates against the presumption of the innocence of the accused till he is proved guilty. It said plainly that, 'This language also creates an inconsistency in itself, because if a Court granting bail records a satisfaction that there are reasonable grounds for believing that the petitioner is ‘not guilty’ of such an offence then this may, at least to some extent, foreclose the option of the trial Court for holding that the petitioner ‘is guilty’ of such an offence although this may or may not be the intention of the legislature, as observed by the Hon’ble Supreme Court. But the language of Section 37(1)(b)(ii) says so in so many words. As per this language, the 'reasonableness' is required only qua existence of grounds for belief of Court but the belief of the Court, as such qua the accused being not guilty is to be unqualified. No Court can record a satisfaction and belief that a person is ‘guilty’ or ‘not guilty’ of the offence at the stage of grant of bail. What is required to be done after a full fledged trial of an accused cannot be sought to be considered and recorded at the initial stage of trial.'
Uncontrolled, undefined and unlimited discretion of the Public Prosecutor impinging upon the power of the Court to freely decide the question of bail
More importantly, the Court noted that Section 37(1)(b)(ii) makes the application of the conditions mentioned in this provision to be applicable only if the Public Prosecutor so desires. It observed scathingly that, 'As per the language of this Section where the Public Prosecutor does not oppose the bail application then Court is not required to apply its mind for arriving at a satisfaction and belief as prescribed in Section 37(1)(b)(ii), despite the fact that the quantity of contraband involved may be many times more than the commercial quantity. So the application of the conditions mentioned in Section 37(1)(b)(ii) becomes the dependant upon the uncontrolled, undefined and unlimited discretion of the Public Prosecutor. This discretion of Public Prosecutor, besides, impinging upon the power of the Court to freely decide the question of bail to the accused, renders the entire process as liable to be discriminatory and un-informed, because Court cannot ensure that the Public Prosecutor has the necessary expertise or sincerity to the cause to take a proper decision, as to taking objection qua bail to the accused.'
Granting bail would tantamount to quashing charge
Truth be told, another interesting dichotomy that was illustrated by the Court points out that, 'While granting bail as per provisions of Section 37(1)(b)(ii), the Court would be required to record, at least, the prima facie, or more than prima facie, satisfaction that the accused is not guilty of the offence alleged against him. And this satisfaction has to be recorded by the Court with reference to the material on record. Whereas at the stage of framing of charge on the basis of same material and record, the Court is to arrive at a prima-facie satisfaction that such a person has committed such offence. In that situation, the accused would be entitled to get the charge quashed, moment he is granted bail by recording satisfaction of the Court as required under Section 37(1)(b)(ii). The accused as a person having protection of legal justness, fairness and rationality can very well put a poser to the Court as to how the Court is restricting its satisfaction to purpose of bail only; despite the satisfaction and belief of the Court being based on the same record and the same being reasonable, and in a given case; even the Court being the same.'
Humanly impossible for the court to arrive at reasonable satisfaction qua possible future conduct and mental state of an accused
In essence, the Court found fault with the provision which requires the Court to be satisfied that there are reasonable grounds for declaring that the accused is not likely to commit ‘any offence’ while on bail. The Judge rationally observed that, 'Moreover, a Court of law would always be well advised to keep in mind that ‘prophesy is not thy domain’. No Court, howsoever trained, can be 'reasonably' satisfied that a person would not commit any offence, maybe even under NDPS Act, after coming out of the custody. It can only be a guess-work, which may or may not turn out to be correct. However, it is not the guess-work which is mandated, but it is 'reasonable satisfaction'.
Truly speaking, it was further observed that, 'By extension of any human logic, it cannot be said that the Court can record, any degree of satisfaction, based on some reasonable ground, as to whether a person would commit an offence or whether he would not commit an offence after coming out of the custody. Neither the Court would be able to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, nor would the Court be able to record a satisfaction that the accused would not commit any offence after coming out of the custody. Hence, the second part of Section 37(i)(b)(ii) requires a humanly impossible act on the part of the court. Since the second part of Section 37 (1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. There is no rational way for a Court to record its satisfaction or to arrive at this satisfaction qua possible future conduct and mental state of an accused. Any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guess work, regarding the possible mental state or possible conduct of that person. Even the sophisticated statistical tools of factorization, based on common minimum behavioral factors in large number of people, are still struggling to find a credible answer in this regard.'
Not stopping here, the Court further observed that, 'Though it has been held in various judgments that unless the Court so applies its mind and arrive at a satisfaction qua the conditions prescribed by Section, the Court cannot grant bail to an accused, but in none of the judgments, any adequate determining principles have been spelled out for the Court to be guided with, in exercise of such a power qua further possible events. In fact, there can be none, if the Court is to record this satisfaction in a ‘reasonable’ manner and on the basis of the ‘available record’ only; and it is not to delve into a pure guess-work. And if the adequate determining principles are not prescribed or decipherable under that Act or cannot be gathered even by human logic then such a procedure has to be treated to be an irrational, undue and unfair procedure for the purpose of inviolability of the right to life and liberty of an individual.'
Past conduct of a person cannot be reasonably made a basis for future reasonable prediction
In hindsight, the Punjab and Haryana High Court also very rightly said that any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guesswork, regarding the possible mental state or possible conduct of that person. It unerringly held that, 'It can occur to mind that if a person is a first offender then he is not likely to commit an offence again or that if a person has committed, say; ten offences then he is more likely to commit offence again. But it has to be kept in mind that the second, third, fourth and the Nth offence is always committed by an accused only after first, having committed the first offence. Likewise, there cannot be any ‘reason’ and, therefore, the ‘reasonable ground’ to believe that if a person has committed ten offences; he is again likely to commit the offence. Examples galore in daily life when a criminal calls it a day, say, after 10th crime also. After all scriptures do tell us as to how Balmiki turned into a 'Maharishi' and created that Epic, which became a treatise of one of the biggest religion of the world.'
All said and done, after considering all the facts of the case, the Judge observed that there are reasons to come, to a prima-facie, but reasonable satisfaction that the accused is not involved in the crime alleged in the present case. Granting bail to the accused, the Punjab and Haryana High Court observed that, 'But, so far as second part of Section 37(1)(b)(ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit ‘any offence’ after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit ‘any offence’ or ‘offence under NDPS Act’ after being released on bail, then this Court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, the satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner. However, it has come on record that earlier also, the petitioner was involved in a case, but he has been acquitted in that case. So his antecedents are also clear as of now. Moreover, since this Court has already recorded a prima-facie satisfaction that petitioner is not involved even in the present case and that earlier also the petitioner was involved in a false case, then this Court can, to some extent, venture to believe that the petitioner would not, in all likelihood, commit any offence after coming out of the custody, if at all, the Court is permitted any liberty to indulge in prophesy.' Therefore, the petitioner was ordered to be released on bail during trial.