Jammu & Kashmir High Court
Zorawar Singh vs State Of J&K; on 21 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A. No.77/2018 & IA No.01/2018
Date of decision: 21.12.2018
Zorawar Singh Vs. State of J&K through
SHO Police Station Lakhanpur
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. H. C. Jalmeria, Advocate.
For the Respondents(s) : Mr. F. A. Natnoo, AAG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Through the medium of instant bail application, petitioner namely Zoravar Singh S/o Baldev Singh seeks grant of bail in FIR No.49/2017 dated 14.06.2017 under Section 8/21/22 of NDPS Act registered with Police Station Lakhanpur.
2. In the bail application, it has been averred that the respondent has registered FIR No.49/2017 under section 8/21/22 of NDPS Act against the petitioner and petitioner is in custody of police since more than 1 ½ years. It is further stated that the allegation leveled against the petitioner is that while he was driving a motorcycle with another person Parvez Ahmed Bhatt sitting on the back seat, the naka party of the police station at Basholi Morh stopped the motor cycle and made search in the pockets of motorcycle riders and 20 gms substance (heroin) is alleged to have been recovered from the pocket of petitioner and 30 gms (heroin) from the pocket of Parvez Ahmed Bhatt. The searching party comprised of B.A. No.77/2018 Page 1 of 6 2 constables and an ASI. The recovered material is said to have been packed in sealed covers by the police officials after taking one mg each out of the material recovered from the pockets of the petitioner and Parvez Ahmed for chemical examination. Report of the J&K Forensic Science Laboratory Jammu dated 30.06.2017 shows the detected material as "Diacetyl Morphine".
3. It is further stated in the application that all the ten witnesses mentioned in the final report are police officials and one Naib Tehsildar, out of these, statements of four have been recorded. Trial Court has granted bail in favour of the co-accused Parvez Ahmed Bhatt and the bail application bearing No.36/2017 dated 27.12.2017 moved by the petitioner before the learned trial Court has been rejected on 11.05.2018 on the ground that though the material shown to have been recovered from the petitioner is just 20 gm yet it is stated in the order that there was some earlier FIR against the petitioner in the same police station, the trial of which is yet not concluded. It is stated that the denial of bail to the petitioner is discriminatory violating his rights under Articles 14 & 21 of the Constitution of India.
4. In the application, it is also stated that the petitioner is a young man of 37 years having wife and five years kid. There is no earning member in the family to look after and feed them. The petitioner is in custody for the last about 1 ½ years. The quantity shown to have been recovered from the petitioner is not a commercial quantity. The petitioner has been implicated in false and fabricates case by the respondent as is evident from record that all search, packing and sealing have been carried out by incompetent persons. Lastly, it is prayed that the petitioner be granted bail.
5. Objections stand filed on behalf of respondent-State stating therein that the present application seeking concession of bail in FIR No.49/2017 is grossly misconceived both in law as well as on facts, as such, deserves B.A. No.77/2018 Page 2 of 6 3 outright dismissal. Present application seeking bail in the afore said FIR, which has culminated into presentation of challan on 27.07.2018, is also not maintainable because in view of the categoric finding recorded by the learned Sessions Judge Kathua regarding the petitioner being habitual offender of the offence under NDPS Act and already booked in FIR No.30/2016 for the same offence and no satisfaction as required under Section 37(1)(ii) can be arrived about the petitioner for not committing the same offence while on bail as prayed for. In the objections, it is further submitted that the petitioner seeking bail on the parity of co- accused is not maintainable because in law mere grant of bail to the co- accused does not ipso facto create any right to the petitioner for seeking bail, more so when admittedly and in light of the observation of learned Sessions Judge, Kathua, the petitioner has failed to make out same case to that of the co-accused. With these submissions, learned State counsel has prayed for dismissal of the instant bail application out rightly.
6. Heard learned counsel for both sides and gone through the law on the subject. Learned counsel for the petitioner has reiterated the grounds taken in the application whereas State counsel has opposed the bail application tooth and nails.
7. It is pertinent to mention here that the petitioner had earlier also filed bail application before learned Additional Sessions Judge, Jammu, which came to be dismissed vide order dated 08.08.2017. There is yet another bail application moved by the petitioner, which came to be dismissed by the trial Court on 11.05.2018, observing that though the quantity of contraband recovered from the possession of accused is not commercial so as to attract rigors contained under Section 37 of NDPS Act, but keeping in view the fact that petitioner after the grant of bail to him by this Court in case FIR No.30/2016 for offence u/s 8/21/22 NDPS Act for allegedly in possession of 6.50 gms of herion, misused his liberty and again committed the offence under the Act in the case in hand, after he B.A. No.77/2018 Page 3 of 6 4 was allegedly found in possession of 20 grams of herion, therefore, he can be safely treated as repeated offender.
8. From the perusal of file, it appears that the allegations against the petitioner are that while he was driving a motorcycle with another person Parvez Ahmed Bhatt sitting on the back seat, the naka party of the police station at Basholi Morh stopped the motor cycle and made search in the pockets of motorcycle riders and 20 gms substance (heroin) is alleged to have been recovered from the pocket of petitioner and 30 gms (heroin) from the pocket of Parvez Ahmed Bhatt. The searching party comprised of constables and an ASI. The recovered material is said to have been packed in sealed covers by the police officials after taking one mg each out of the material recovered from the pockets of the petitioner and Parvez Ahmed for chemical examination. Report of the J&K Forensic Science Laboratory Jammu dated 30.06.2017 shows the detected material as "Diacetyl Morphine". FIR No.49/2017 dated 14.06.2017 under Section 8/21/22 of NDPS Act stands registered with Police Station Lakhanpur, in this regard and after due investigation, the challan stands presented against the accused-petitioner. The proceedings are at initial stage. The earlier bail applications moved by the petitioner before trial Court already stand dismissed.
9. Section 37 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.B.A. No.77/2018 Page 4 of 6 5
(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,].‖
10. From the perusal of this Section, it is manifest clear that this section is applicable for offences under section 19 or section 24 or section 27A only when commercial quantity of Narcotics Drug or Psychotropic Substance is found from the possession of accused. In term of section 37 of NDPS Act, no person shall be released on bail, who is found in possession of commercial quantity of Narcotic and Psychotropic substance unless the prosecution is given opportunity to oppose the bail application and Court finds that accused is not, prima facie, involved in the offence. These restrictions are in addition to restrictions imposed under section 497 Cr.P.C. In the present case accused has been found in possession of 20 gms of Heroin. The accused has, thus, been found in possession of quantity, which is in between commercial and small quantity. In this way rigour of section 37 of Act is not applicable.
11. In 2008 (3) JKJ 410 (HC), in case, titled, Tariq Ahmad Dar and another Vs. State and others, the High Court of J&K, has held as under:
―Criminal Procedure Code, Svt. 1989, Section 497 & 498---- Narcotic Drugs---Section 37--Bail--Jurisdiction of High Court--- Held, the Powers are concurrent, it does not mean that once plea of bail is rejected by Sessions Court, the High Court cannot exercise the powers-- Accused are in the jail for the last more than ten months--Detention or custody can be by way of Punishment--In criminal jurisprudence the accused is presumed to be innocent until guilt is brought out---Accused deserves to be admitted on bail. Rel. on AIR 1978 SC 1979.
The relevant Para of the judgment reads 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 B.A. No.77/2018 Page 5 of 6 6 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.‖
12. The general law of bail shall apply in present case. Every person is presumed to be innocent unless his guilt is proved beyond reasonable doubt. Section 497 Cr.P.C. empowers the Court to consider the bail. 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 appears that there are reasonable ground for believing that accused applicant has committed such type of offence. In the present case accused-applicant has been found in possession of contraband, which is in between commercial quantity and small quantity and punishment for this offence is up to 10 years and a fine of Rs.one lac. In this way, rigour of Section 497 Cr.P.C is also not applicable.
13. Petitioner is in custody and trial is proceeding. He cannot be kept in custody as a matter of punishment. Every person is presumed to be innocent until the accusation is proved against him/her by competent court. Bail is rule and its refusal has to be in exceptional circumstances.
14. The petitioner is, thus, admitted to bail, subject to furnishing of his surety and personal bonds in the sum of Rs.50,000/- each to the satisfaction of Court concerned on the following terms and conditions:-
a) That he shall actively participate in the trial.
b) That he shall not leave territorial jurisdiction of the State without taking prior permission of trial Court and shall refrain from intimidating prosecution witnesses.
15. Bail Application is disposed of accordingly.
( Sanjay Kumar Gupta ) Judge Jammu, 21.12.2018 Narinder B.A. No.77/2018 Page 6 of 6