Jammu & Kashmir High Court - Srinagar Bench
Imtiyaz Ahmad Bhat vs . on 22 April, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
P a g e |1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA No. 166/2018
IA No. 01/2018
c/w
BA No. 167/2018
IA No. 01/2018
Date of Order: 22.04.2019
Imtiyaz Ahmad Bhat
Vs.
State & Ors.
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearing Counsel:
For Appellant(s): Mr. Parvaiz Ahmad, Advocate.
For Respondent(s): Mr. Javaid iqbal, Sr.AAG.
i) Whether approved for reporting in Law journals etc.: Yes / No
ii) Whether approved for publication in press: Yes / No
1. Learned Principal District & Sessions Judge, Budgam, who is seized of the case titled Muneer Ahmad Shergojri Vs. State through SHO P/S Budgam has rejected the bail application of the present petitioners in terms of the order dated 12.09.2018 with the following observations:-
"...From the material collected by the I.O so far, it is gathered that the applicants are collectively involved in unauthorized trade of narcotic substance namely, poppy straw. Statement of one of the co accused namely Raud-ud-din has been recorded in terms of Sec.67 of NDPS wherein he has spilled the beans as to the conspiracy of narcotic trade and the actual act committed by the applicants. He has named all the applicants to be involved in narcotic trade.
P a g e |2 The I.O has collected evidence as to money transactions in the accounts of some of the applicants which is said to be in lieu of the illegal narcotic trade. Applicant Imtiyaz Ahmad Bhat though not actually found in possession of the narcotic substance, he is also beneficiary of the narcotic trade and in involved in the conspiracy of such narcotic trade. Even if the offence of conspiracy in terms of Sec. 120-B Cr.PC is not made out, the said applicant is involved in terms of Sec.29 of NDPS Act, which has equal proportions as that of actual commission of offence.
As already noted above, the applicants are collectively involved in narcotic trade in respect of 323 kilograms of poppy straw, they are all collectively involved in commission of offence under Sec. 8/15 NDPS Act and 29 of NDPS Act. Rigour of Sec.37, as such, is applicable to all the applicants, in view of commercial quantity involved in the offence."
2. The grounds taken in the present petitions to admit the petitioners to bail are precisely as:-
"That the petitioners have been implicated in the said FIR on the basis of doubt without any legal proof and merely on the basis of confessional statement made by one of the accused namely Mohammad Sidiq Sidu before the Investigating Agency. The confessional statement made before the Investigating agency is otherwise barred by law strictly in pursuance to Section 25 of the Indian Evidence Act, which says, "A confession made to police officer is inadmissible in evidence except so far as is provided by the Section 27, hence any incriminating statement made by an accused to a police officer is inadmissible in evidence. That till date the Investigating agency has not been able to record the statement of witnesses in terms of Section 164-A Cr.PC before the Magistrate and only statement of witness namely Wali Mohammad, Head Constable has been recorded who has deposed in his statement nothing extra but detail of police report. That the applicants are innocent persons and have not indulged in any act or conduct constituting an offence punishable under the P a g e |3 penal law of the land. It is further submitted that the applicants have not at any point of time committed any offence nor indulged in any such activity.
That the applicants submits that bail applicants were filed by the applicants before the competent court of law, however, the said applicants were rejected by the learned court of Principal Sessions Judge, Budgam. It is submitted that the said order has been passed in gross violation of the rules of natural justice and also established principles and norms required for rejecting the bail application.
That the settled law relating to bails is that "Bail is the rule and Jail is an exception. Bail cannot be withheld as a measure of pre- trial punishment. Whenever a person is arrested by the police for such an offence, there should be materials produced before the court to come to a conclusion as to the nature of the case lie is involved in or he is suspected of."
3. Objections stand filed on behalf of the respondents, wherein it is contended that:-
"....That the offences committed under the provisions of the Act are legally presumed to be cognizable, as such the bail merits rejection. It is submitted that the trial is in its infancy and that admitting the petitioners/accused to bail would prove prejudicial to taking the trial to its logical conclusion. That the accused/petitioners were caught red handed with the contraband and there is prima facie evidence that the petitioners are involved in commission of offences punishable under the provisions of the NDPS Act.
That Section 37 of NDPS Act operates as a bar and no offender is to be granted bail unless Hon‟ble Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any such offence while on bail.
That it is pertinent to mention here that commercial quantity for poppy straw(fukki) is fifty(50) kgs. In the case at hand, the P a g e |4 quantity recovered is commercial quantity, six time over. As such, the nature and seriousness associated with the offence becomes seriously grave.
That the liberty of the petitioners/accused has not been curtailed but only restricted in order to prevent them from committing identical or similar offence in future. As such the bail merits rejection."
4. Learned counsel for the petitioners on being heard submits that the confessional statement of co-accused person has been recorded under Section 27 of Evidence Act instead of Section 67 of NDPS Act, which is gross violation of law committed by the Investigating agency as it is contradictory to provision related to the subject matter. Therefore, a person who has not uttered a single word against other person in his confessional statement cannot be kept bound or treat such person as part of the crime, even if he might have given the name of the person but still such statement cannot be treated as a relevant statement within the meaning of law and is inadmissible under the Indian Evidence Act.
5. Learned counsel has taken reliance on the following judgments:-
a) 2009(2) SCCr 932, Union of India Vs. Bal Mukund & ors.;
b) AIR 2009 SC (Suppl) 1046, Raju Premji V. Customs NER Shillong Unit;
c) 2001 CRI. L.J. 1882, Jahida Bi V. Central Narcotics Bureau;
d) 2007 CRI. L.J. 1757, Mohd. Ammer V. State of Rajasthan;
e) 1997 CRI. L.J. 872, Sham Lal V. State of Haryana;
f) 2001 CRI, L.J. 297, Jagdish V. State.
6. The Hon'ble Apex court in '2009(2) SCCr 932' has held:-
P a g e |5 'that if an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein.‟
7. Furthermore, learned counsel for the petitioners submits that the mandate of Section 50 of NDPS Act has not been complied with by the investigating agency which has curtailed the fundamental rights of the petitioners. It is his further submission that the recovery has not been made in presence of any independent witness on spot which shows the investigation has been conducted in hasty manner in violation of rights of the petitioners. The petitioners who are behind the bar since last more than 09 months are entitled to bail, according to learned counsel for the petitioners. It is also submitted by the learned counsel that non-commercial quantity has been found in the offending vehicle so, Section 37 of NDPS Act would not get attracted.
8. Per contra, Mr. Javaid, learned Sr.AAG submitted that the petitioners herein are involved in the commission of serious offences and the edifice of the case of the prosecution is laid on the criminal conspiracy which has been hatched for transporting the contra band, recovered from the petitioners herein on the pertinent date. Major recovery of contraband( 323 kg. of poppy straw) took place by chance during night hours at Ichigam, Budgam. He has further submitted that there is no basis to segregate the allegations or the recovered P a g e |6 substance referred to in the said FIR and the recovery memo attributed to the petitioners herein. Learned senior AAG has taken reliance on the judgment reported in AIR 2000 SC 3661, Superintendent Narcotics Central Bureau Vs. R. Paulsamy, whereby their lordships' have made observations that under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. Para-6 of the said judgment shall be advantageous to be quoted herein:-
"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections."
9. The facts as can be noted from the perusal of the referred judgment are:-
P a g e |7 "That the respondent and his wife were facing a prosecution for offences under Sections 8C, 21, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 193 and 1208 (120-B) Indian Penal Code. The case against them was that 2 kg. heroin had been recovered from a room which was in the possession of the respondent. At the relevant time he himself was a Superintendent, Customs, Preventive Unit Madurai. His wife was Superintendent of Central Excise and Customs at Thanjavur. First respondent moved for enlarging him on bail. A learned Single Judge of the High Court of Madras passed an order releasing him on bail on executing a bond in a sum of Rs.10,000/- with two solvent sureties. Appellant(Superintendent of Narcotic Control Bureau, South Zonal Unit, Chennai) has filed this appeal by special leave in challenge of the said order of the Madras High Court."
10. Further observations as appeared in the judgment about grant of bail are:-
"The learned Single Judge of the High Court of Madras in the case supra had observed „that since no document depicts that such a report has been send to the immediate official superior P a g e |8 within 48 hours as contemplated under the said Section, therefore, found merit in the contentions raised about violation of Section 52 and 57 of NDPS Act. Rationale adopted by learned Single Judge referred above was found to be not within the parameters of law, however, it was clarified that the order would not stand in the way of the respondent satisfying the trial court or the High Court on any fresh application, by which he would fall within the parameters contemplated under Section 37 of the Act. The contentions raised that there was nobody to look after the children of the respondent as both the parents were in jail, was not found sufficient to admit the respondent to bail."
11. I have considered the rival arguments and perused the record.
12. Reverting back to the instant case, it is evident from the perusal of record/attested copies of relevant documents, which has been called in terms of the earlier order passed by this Court that the involvement of the petitioner herein for the commission of offence under Section 8/15 NDPS Act read with Section 29 NDPS Act, has been prima facie established. The petitioners have been charged for the commission of offence of having been involved in narcotic trade and from his possession commercial quantity of poppy straw P a g e |9 was recovered and so prosecution was directed to lead evidence. The learned trial Court has also framed the opinion that there is no material to dislodge the presumption to be raised in terms of Section 37 NDPS Act while declining to admit the petitioner to bail.
13. On going through the said material, I am of the opinion that the satisfaction recorded by the learned trial Court does not suffer on account of any impropriety or erroneousness at this stage. Since the petitioners have already been found prima facie to be involved in the commission of offences under Section 8/15 NDPS Act read with Section 29 NDPS Act and there being nothing to controvert the same, the petitioners, thus, have not been able to carve out the case for their admission to bail. No substantial change of circumstance has occurred thereafter. The judgments, relied on by the learned counsel for the petitioners, are wholly inapplicable to the instant case and cannot be pressed into service at this stage. Most of the judgments, relied on by the learned counsel, have been passed by the Hon'ble Apex Court in Criminal Appeals or SLPs filed on behalf of the aggrieved persons. Similarly the bail has been granted by the High Courts in some case where the bar under Section 37 of NDPS Act was not applicable.
14. The weight to be given to the statement of co-accused who has been examined under Section 67 Cr.PC or any other point referred hereinabove on P a g e | 10 behalf of the petitioner can be properly dealt with at trial stage. There is no ambiguity regarding the fact that the contraband involved in the instant case is commercial in nature, so it was for the petitioners to come out of the rigor of Section 37 NDPS Act. The defence taken in terms of the instant case by the petitioners herein for not having participated at any time in the conspiracy attributed to them, cannot be gone into by this Court as it is for the learned trial Court to examine the credibility and acceptability of this preposition at appropriate stage.
15. Precisely to state that no reasonable grounds have been found for opining that the petitioners are not guilty for the offences as referred above, and as a sequel of which, I do not find any ground is made out for interference at this stage. The petitioners would be free to approach either learned trial court or this Court in case there is any change in circumstances. As such, both the petitions deserve rejection, accordingly are rejected along-with connected IA(s). The trial court shall however, proceed with trial expeditiously having regard to the fact that submission is being made that only one witness till date has been examined by prosecution.
16. Copy of this order be furnished to the learned trial court, for information.
(Rashid Ali Dar) Judge Srinagar 22.04.2019 Muzammil. Q MUZAMIL QADIR 2019.04.23 12:09 I attest to the accuracy and integrity of this document