Jammu & Kashmir High Court
Bhupinder Singh vs State on 4 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT
JAMMU
Case:- B.A. No.117/2017
Date of order:04.08.2017
Bhupinder Singh Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For Petitioner (s): Mr. Daljeet Singh Manhas, Advocate.
For respondent(s): Mr. Sanjeev Padha, GA.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Through the medium of instant application, petitioner-Bhupinder Singh seeks grant of bail in case FIR No.137/2017 registered under Section 8/15 NDPS Act.
2. Learned counsel for the petitioner stated that the petitioner had earlier also moved an application for bail before the learned Principal District Judge, Jammu, which was transferred to learned 2nd Additional Sessions Judge, Jammu. The said application came to be dismissed vide order dated 04.07.2017, which reads as under:-
"Perused the police report which reveals that Bhuki weighing 1 kg 500 gm has been allegedly recovered from the possession of applicant and admittedly embargo contained in Section 37 of NDPS Act does not apply as the quantity recovered from B.A. No.117/2017 Page 1 of 6 applicant/accused is not commercial but inter mediate and investigation of the case is not yet complete. Keeping in view the growing trend of involvement of women, handicapped, baggers etc in the offences, I am of the opinion that it is not appropriate to release the accused/applicant in such circumstances at this stage. Therefore, applicant has failed to make out a case for release on bail at this stage and application is dismissed. However, applicant is at liberty to approach competent court at appropriate stage as and when there is change of circumstances."
3. Learned counsel further submitted that the learned 2nd Additional Sessions Judge, Jammu, has dismissed the bail application in a very casual and mechanical manner as no reason thereof has been recorded by the learned trial Court. Admittedly, the contraband alleged to have been recovered from the petitioner is 1.5 kg Poppy straw (Bhukki) and same is less than commercial quantity and therefore Section 37 of the NDPS Act is not applicable to the present case. Learned counsel also submitted that the investigation in the aforementioned FIR is almost complete as no further recovery is to be effected and the petitioner is in police custody for last more than 10 days.
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4. Learned counsel lastly prayed that the petitioner be granted the concession of bail on any terms and conditions imposed by this Court.
5. Per contra, learned State Counsel opposed the bail tooth and nails stating that the petitioner has not disclosed any fresh/change of circumstances in this application. It is submitted that the petitioner along with two other accused have been booked under NDPS Act and the investigation of the case is at infancy stage and the applicant has an opportunity to defend himself and can be acquitted of the charge in case prosecution fails to bring home his guilt. The trial Court has rightly rejected the bail holding that the investigation of the case has not completed and also keeping in view the gravity of growing trend of involvement of women, handicapped, beggars etc in the offences. There is incriminating material against the applicant to connect him with the crime he has committed. Learned State counsel, thus, prayed that the instant bail application filed by the applicant be dismissed at this stage being premature.
6. Heard learned counsel both the side and considered the law on the subject.
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7. All the offences under section NDPS Act are serious in nature and punishment provided is up to 20 years when the quantity is found in commercial category. In schedule of NDPS Act, the commercial quantity of Bhukhi is 50 KG and small is 1 KG.
8. Section 37 of NDPS Act reads as under:-
"[37. Offences to be cognizable and non- bail able;- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also 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. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail,]."B.A. No.117/2017 Page 4 of 6
9. From the perusal of this Section, it is evident that no person can be enlarged on bail, if he is found in possession of commercial quantity of Narcotic and Psychotropic Substances Act unless Court comes to the conclusion that accused is not guilty of offence. In present case, accused has been found in possession of 1.5 Kg of Bhuki/Poppy Straw which is in between commercial and small quantity because small quantity is 01 Kg and commercial quantity is 50 Kg. So rigor of section 37 NDPS Act is not applicable.
10. In 2008 (3) JKJ 410 (HC), in case titled Tariq Ahmad Dar and another Vs. State and others, the Hon'ble High Court of J&K has held as under: -
"2. Earlier Section-37 of the NDPS Act took into its sweep all offences punishable under the Act, but now pursuant to amendment operation of Section -37 of the Act has been limited in its operation only to such offences which are punishable under section-19, Section-24, Section-27 (A) and all offences involving commercial quantity of the Narcotics. The fetters imposed by Section -37 of the Act are applicable only under said position of the case. If the case does not fall within the scope of Section-37, then grantor refusal of the bail has to be considered under Section-497 of the Cr.P.C."
11. So general law of bail shall apply in present case.
Every person is presumed to be innocent unless his guilt is proved beyond reasonable doubt . As per section 497 Cr.P.C a person who has committed offence punishable with death or life imprisonment cannot be granted bail, if there appear that there are reasonable ground for B.A. No.117/2017 Page 5 of 6 believing that accused applicant has committed such type of offence. In the present case accused - applicant has been found in possession of Narcotic drug and Psychotropic Substance i.e. B Bhuki which is in between commercial quantity and slightly more than small quantity and punishment for this offence is upto 10 years and a fine of Rs. one lac. In this way rigor of Section 497 Cr.P.C is also not applicable.
12. A person cannot be kept in judicial custody as a matter of punishment, before trial. Petitioner is already in custody since 27.06.2017. Accused cannot be kept in custody as a matter of punishment without full trial. All the allegations leveled are subject to judicial adjudication.
13. Accordingly, applicant has made out a case for bail and this application is allowed subject to the applicant's furnishing surety bond of Rs 1,00,000/ and personal bond of Rs.1,00,000/- before Registrar Judicial. Accused shall not leave the jurisdiction of this court without prior permission and shall not tamper or hamper prosecution evidence in any manner. He shall attend the investigation and trial on each and every date.
14. Bail Application is disposed of accordingly.
( Sanjay Kumar Gupta ) Judge Jammu:
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