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Shri Khupliansum v. State of Meghalaya

Before High Court of Meghalaya at Shillong

Bail Application 22/2023 dismissed on 31.07.2023

Case relates to Narcotic Drugs and Psychotropic Substance

Hon’ble Mr. Justice W Diengdoh J dismissed the bail application of the accused Smt Kimneikhol Khongsai who has been arrested on 27.10.2022 for offence under NDPS Act (Narcotic Drugs and Psychotropic Substance).

While dismissing the bail application the Court observed that we are living in the society where the menace of drugs is threatening enough to destroy lives and society. Indeed, young people are most vulnerable to this threat and many a time, have been seen to fall prey to the same.

It is incumbent upon the society as well as on the courts to combat this menace in whatever possible way and although, due procedure of law has to be followed, in drug related cases, the Investigating Agencies and Courts has to be given wide latitude in napping or bringing any possible accused to book.

Contention of the Counsel of the accused

The alleged accused was arrested on being implicated by the co-accused, who were arrested earlier in connection with the said criminal cases.

No contraband or narcotic drugs and psychotropic substances was found from the possession of the accused person and as such, the presumption under Section 54* of the NDPS Act cannot be attached to the accused person.

The alleged mobile handset recovered from the alleged accused does not belong to her and the SIM CARD is also not registered in her name.

The accused is innocent.

The accused person has been in custody for more than 9(nine) months and trial has not yet begun, therefore, for prolongation of the trial, the accused person is entitled to be enlarged on bail.

Section 54 NDPS Act* in the trial, it may be presumed that a man has committed an offence in relation to any narcotic drug or psychotropic substance if he is found in possession of such contraband and has not satisfactorily reasoned such possession as to how and why he is in possession ..

Contention of the Additional Advocate General

A look into the antecedent of the accused person in question, would reveal that she was involved in a number of cases under the NDPS Act, implicating her with possession and supply of narcotic drugs. It is also well-founded that the accused person is a supplier of narcotic drugs, which fact was revealed from the 161 Cr P C statement of the co-accused persons, who has named the accused person herein.

Statements under Section 161 of Cr.P.C may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence

Absence of possession of contraband on the accused person, would not dilute the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act

Observation of the Court

If an offence under Section 21(c)* has been committed, abetment of the same, would carry the same punishment and also that the rigors of Section 37* of the said NDPS Act shall also apply.

Section 21(c)* where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]

Section 37 the Court can grant bail to an accused only on being satisfied that there are reasonable grounds for believing that they are not guilty of such an offence and that the accused is also unlikely to commit any offence after being released from jail.

The proceedings before the Trial Court is moving in a normal course and there is no unnatural or intentional delay by the court. The contention of the petitioner that the trial has been unnecessarily prolonged, cannot be accepted by this Court.

The Investigating Officer has filed the charge sheet in both cases, that is, No. 64 and 65 of 2022 respectively with a finding that a case under Section 29 NDPS Act was found well established against the accused person in question in both cases.

This article on 'How to Draft a Bail Application in India?' was published by Legal Upanishad.

Introduction

Today I'm going to tell you everything you need to know about bail applications in India. We will be discussing what is a bail application, the particulars of a bail application how to draft a bail application in India, and provisions for Bail. Rules and Concessions are also discussed. In India’s legal system, the term offence has been categorised as bailable offences and non-bailable under the Code of Criminal Procedure. This means a person can be released on bail if the offence is not grave or there’s a reason to believe that the accused is not guilty. Now, ‘What is bail?’ As per Section 436 of the Indian Penal Code, bail is a right in bailable offences, and the police or court, whoever has custody, is bound to release the accused following furnishing of a bail bond, with or without surety. In simple words, bail means the interim release of a suspect in any criminal offence who is awaiting court trial after paying the bail bond. There are three types of bail, they are, bail in a bailable offence, bail in a non-bailable offence, anticipatory bail, and default bail. The issues discussed below are, how to draft a bail application, under which law bail is applied, appropriate sections, rules, and concessions that must be taken notice of, and some suggestions that will help in understanding bail procedure in India.

What is a bail application?

Application for bail is filed under Form 45 Schedule 2nd. The application is filled by the accused’s lawyer and the accused has to furnish bond and sureties before the court for them to be released.

Particulars of a Bail Application

- Name of the court and the place it is situated. - Name of the parties. - FIR number. - Mentioning the section under which the application is moved. - Name of the Police station in which the accused is held. - The date on which the accused was taken into custody. - The ground on which the bail should be granted. - Mentioning the surety of the accused not absconding on granting of bail. - The accused must be present before the court whenever summoned. - The accused will not leave the country without the prior permission of the court. - Prayer by the Counsel asking for the grant of bail on the abovementioned grounds. - Signature of the applicant on the bail application.

Provisions for Bail

Bail is a matter of right in a bailable offence and can be granted by a Police officer provided surety is furnished. In the landmark judgment in the case of D.K. Basu v. State of West Bengal, it was held the police have the duty to inform the arrestee on what charges has he been arrested. The application for bail is presented before the Magistrate, who is in charge of the case. The application is ordinarily heard the day after which the application is filled but this is only possible if the matter is listed before. For the matter to be heard as soon as possible an advance copy of the bail application must be forwarded to the investigating officer. The accused is to be produced before the court by the police at the time of passing the order, regardless of whether the application is approved or disapproved by the Magistrate. A bail application once rejected can again be filed if there is any change in circumstances. Unless there is a change in circumstances there is no bar to filing a successive bail application. In the case of Union of India V. Nirala Yadav, our Hon'ble Apex court held that Magistrate should decide the application for statutory bail on the same day it is filed. Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to grant or refuse to grant bail for any non-bailable offence. The concerned Magistrate is also called the Ilaka Magistrate.  Section 438 deals with anticipatory bail. It is applied in anticipation of arrest for a non-bailable offence. It is more suitable to file an anticipatory bail application in a Sessions court rather than the High court even if the law permits approaching the High court. In Default bail under Section 167(2), if the punishment for offences is less than 10 years then the police have the duty to file a charge sheet within 60 days, and in case of more than 10 years then 90 days. If the charge sheet is, however, not filed within the time limit then that person gets the “right to bail.”

How to Draft a Bail Application in India?

Rules and Concessions

437 CrPC – An officer-in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a non-bailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment.in case, where the accused had been previously convicted for an offence punishable with death, imprisonment for life, or imprisonment for seven years, or more, he is not to be released on bail. Similarly, any person previously convicted two times for an offence for three years or more but less than seven years also cannot be released on bail. But the court can release these persons if it thinks it is just and proper to release them for some special reasons. The reason for doing so must be recorded by the court. The proviso is that these rules are not applicable if such person is under the age of sixteen years or is a woman or is sick or infirm but the court has discretion in such cases. A woman can be granted bail for a non-bailable offence even if it is punishable with a life sentence or death; this was held by the Karnataka High Court.

Suggestions

To get bail one must file a bail application through a competent criminal lawyer in the concerned court as per Form 45. There is also an option of e-filing that can be availed of. The bail amount usually depends upon the discretion of the court. The court decides this amount after taking the gravity of the crime into consideration. After the matter is listed in the court always check either with the Reader or the Ahlmad of the court whether the file has been entered in the Cause list or not and make appropriate arrangements according to the circumstances.

Challenges / Conclusion

Bail laws in India are very complex and are granted at the discretion of the court after considering several factors; hence it is very hard to predict the outcome of the bail application. Bail is a fundamental aspect of any criminal justice system and the practice of bail grew out of the need to safeguard the fundamental right to liberty. The right to liberty is enforceable by the courts, however, our jails are flooded with prisoners that should be granted bail. The Supreme Court delivered its verdict in the Satender Kumar Antil versus Central Bureau of Investigation (CBI) case. It noted then that “jails in India are flooded with undertrials.” The reason being the prisoners are poor and illiterate and are not able to defend themselves adequately. There is a sizable difference between an accused and a convict, but most of the accused persons are treated as if they are also convicted. Just as justice delayed is justice denied is an important rule of law, arrest without bail or prolonged detainment is the same as having no remedy at all. The apex court had also reprimanded the lower courts, for being inefficient in dealing with the bail. There is an urgent need for reformation in existing bail laws whether it is through new bail law or amendment to the existing law. Coherent implementation of the law must also be given priority. The abrupt arrest has caused many citizens to be detained wrongfully which has caused a miscarriage of justice. Therefore, bail laws need to be rectified and enforced justifiably.

References

If a person is accused of an offense he may need to apply for bail. Before applying for bail an accused should speak to a lawyer for the bail application. Bail ensures the release of the arrested accused person. To apply for bail the accused should be produced in the court without any delay. A bail application is a written undertaking or a promise to appear for a hearing on a date fixed by the court. The court can grant you bail during any stage of the trial. Bail allows you to wait for your court hearing instead of going home and being in custody.

How to apply for bail

The best way to apply for bail is by getting the expertise of a skilled lawyer. A minor offense can force you to remain in custody until the day of the trial. that's when the bail application comes in handy. It allows you to stay at home until you are called for the next hearing. It may be a good decision for you to approach the Bail Application Lawyers, a team of highly trained lawyers.

What are some common bail conditions?

Attending court at a particular time and place Agree to pay an amount of money if you don’t attend as required (personal undertaking). Having another person agree to pay an amount of money if you don’t attend as required (surety). Reporting to a police station. Living at a particular address. Not to contact certain people. Not to enter specified areas.

Security Conditions of Bail:-

The condition of security bail may also be attached to the undertaking of bail to prohibit the accused person from direct contact with certain persons or to prevent the accused person from moving within a certain distance of a specified place.

Conditions of special bail to protect the safety, welfare, or property of any person or to prevent interference from witnesses. Usually, you need to stay away from a specific person and/or place.

What happens if you don't go to court?

If you are out on bail and you fail to appear in court when required, you may be arrested and taken to court custody. You can also be charged with the offense of breach of bail.

If you miss the court, you must appear in court as soon as possible after that. If you have a real reason for not being present (eg medically unfit or in an emergency) you should bring proof of this with you. This can help you avoid being accused of breach of bail.

If you know that you will not be able to appear in court and you have a good reason, you should speak to your lawyers, or the court as soon as possible. You may be able to avoid being charged with changing the date or breaching bail.

How do Bail Application Lawyers Help You?