Jammu & Kashmir High Court - Srinagar Bench
Javaid Ahmad Dar & Ors vs Ut Of J&K Through P/S Yaripora on 21 October, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 12.10.2022
Pronounced on: 21.10.2022
Bail App No.81/2022
JAVAID AHMAD DAR & ORS ... PETITIONER(S)
Through: - Mr. M. Shafi Bhat, Advocate.
Vs.
UT OF J&K THROUGH P/S YARIPORA ...RESPONDENT(S)
Through: - Mr. Usman Gani, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioners have filed the instant bail application seeking bail in a case arising out of FIR No.10/2021 for offences under Section 8/15/29of the NDPS Act registered with Police Station, Yaripora Kulgam.
2) As per case of the prosecution, on 26.02.2021, Police of Police Post, Frisal received information from reliable sources that the petitioners herein are involved in the trade of drug trafficking. On the basis of this information, the FIR came to be registered and the investigation was set into motion. During the investigation, the police party along with the SHO, P/S Yaripora, and the Executive Magistrate, Frisal, raided the house of petitioner Parvaiz Ahmad Dar. During its Page |2 Bail App No.81 /2022 search, 11 Nylon bags were recovered from underneath the tin shed and these bags were found to contain Poppy Straw weighing 200 kgs. The samples were taken and the same were sealed, whereafter the samples were sent to the FSL for chemical examination. As per the report of the FSL, the recovered articles were identified as Poppy Straw plant material of Papaver Soniferum. Thus, according to the prosecution, offences under Section 8/15/29 of the NDPS Act were found established against the petitioners and the challan was laid before the Court.
3) It appears that charges for offences under Section 8/15/29 of the NDPS Act were framed against the petitioners and trial of the case was set into motion. During the trial of the case, the petitioners moved an application for bail before the learned trial court and the same was dismissed in terms of order dated 30.05.2022.
4) The petitioners have sought bail on the ground that there are contradictions in the statements of prosecution witnesses recorded during trial of the case and these contradictions relate to essential aspects of the case like the place of recovery of the contraband. It has been further submitted that even as per the prosecution case, the contraband has not been recovered from all the three accused persons but it has been recovered only from the house of petitioner Parvaiz Ahmad Dar. According to the petitioners, there is no material on record of the charge sheet nor anything has come in evidence during the trial against other two accused.
Page |3 Bail App No.81 /2022
5) The respondent has resisted the bail application of the petitioners by filing a reply thereto. In the reply, besides narrating the allegations made in the charge sheet, it has been contended that the material on record clearly suggests that the petitioners are involved in the alleged crime. It has been further contended that the petitioners are involved in a crime relating to possession of commercial quantity of contraband substance, as such, they cannot be enlarged on bail in the face of rigour contained in Section 37 of the NDPS Act.
6) I have heard learned counsel for the parties and perused the record of the case including the trial court record.
7) The allegations against the accused including the petitioners are that commercial quantity of contraband substance was recovered from their possession. There is no dispute to the fact that the quantity of contraband substance alleged to have been recovered from the petitioners falls under the commercial quantity. Therefore, provisions contained in Section 37 of the NDPS Act are attracted to the instant case. Section 37 of the NDPS Act reads as under:-
"37.Offences to be cognizable and non- bailable.:
(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 Page |4 Bail App No.81 /2022 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."
8) From a perusal of the aforesaid provision, it is clear that in the cases in which commercial quantity of contraband substance is alleged to have been recovered from the accused, bail can be granted only if there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The said mandate of the legislature is required to be followed at the time of consideration of the bail application of the accused. These limitations on grant of bail are in addition to the limitations under the Code of Criminal Procedure.
9) The Supreme Court in the case of Union of India vs Ram Samujh and another,1999 (9) SCC 429, has laid down broad parameters to be followed while considering application for bail moved by the accused involved in the offences under NDPS Act. The relevant excerpts of the observations are reproduced as under:-
Page |5 Bail App No.81 /2022 "It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, Page |6 Bail App No.81 /2022
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-
economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
10) From the perusal of the aforesaid observations of the Supreme Court, it is clear that unless two conditions mandated under Section 37 of the NDPS Act are satisfied an accused who is involved in offence relating to commercial quantity of contraband, cannot be enlarged on bail. The first condition is that the prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence.
11) The Supreme Court in the case of State of Kerala Vs. Rajesh and others, 2020 (12) SCC 122, while interpreting the expression reasonable grounds appearing in Section 37 of the NDPS Act, has observed as under:-
"The expression "reasonable grounds"
means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief Page |7 Bail App No.81 /2022 contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
12) In the backdrop of the legal position, as enunciated by the Supreme Court, it is clear that unless it is shown from the material on record, which would include the statements of the witnesses recorded by the prosecution before the trial court in support of its case, that there are reasonable grounds to justify the satisfaction that the accused is not guilty of the alleged offences, the accused cannot be enlarged on bail.
13) In the instant case, if we have a look at the charge sheet, it is alleged that on the basis of a specific information that petitioners are involved in drug trafficking, police raided the house of petitioner Parvaiz Ahmad Dar and recovered 200 kgs of Poppy Straw from there. The statements of witnesses recorded under Section 161 of the Cr. P. C support the assertion that the aforesaid quantity of Poppy Straw was recovered from the house of petitioner Parvaiz Ahmad Dar. The witnesses have further stated that when police party raided the spot i.e., the house of petitioner Parvaiz Ahmad Dar, for the purpose of conducting search, all the three petitioners were present over there and they, upon spotting the police party, fled away from there. Thus, it is Page |8 Bail App No.81 /2022 the positive case of the prosecution that the recovery of the contraband has taken place from the house of petitioner Parvaiz Ahmad Dar.
14) The statements of witnesses recorded during trial of the case are also on similar lines. Though there are certain contradictions inter se these statements yet it would not be open for this Court to embark upon a meticulous analysis and effect of these contradictions on the prosecution case at the time of deciding the bail application. A critical and minute analysis of the prosecution evidence may ultimately support the contention of the petitioners that these contradictions are on vital aspects of the prosecution case which may have a fatal effect on it, yet at this stage it is not open to this Court to undertake such an exercise in these proceedings.
15) It appears that during the pendency of this bail application, statements of some more prosecution witnesses have been recorded by the trial court and the record of the trial court would show that the statements of most of the material witnesses have been recorded by the trial court and these statements are on similar lines, prima facie, showing that contraband substance has been recovered from the house of petitioner Parvaiz Ahmad Dar.
16) Without commenting upon the merits of the case, lest it may prejudice the prosecution case, it appears that, prima facie, there is no evidence on record of the trial court, that has been recorded during the trial and that is proposed to be recorded by the prosecution, to connect Page |9 Bail App No.81 /2022 the other two petitioners, namely, Javaid Ahmad Dar and Imtiyaz Ahmad Mir to the alleged crime. Admittedly, no recovery has been effected from the possession of these two petitioners and the material on record including the evidence already recorded does not, prima facie, show any link between these two petitioners and the third petitioner from whose house the contraband substance has been recovered. The only evidence against these two petitioners is that they were also present on spot along with third accused and on spotting the police, they fled away from there. Prima facie, only this circumstance may not be enough to record conviction against the petitioners Javaid Ahmad Dar and Imtiyaz Ahmad Mir. Thus, it can be inferred that there are reasonable grounds for believing that petitioners Javaid Ahmad Dar and Imtiyaz Ahmad Mir may not ultimately be guilty of the offences for which they have been charged.
17) The prosecution has not placed on record any material to even remotely suggest that the petitioners Javaid Ahmad Dar and Imtiyaz Ahmad Mir, if released on bail, would indulge in similar activities. Thus, the conditions for grant of bail as stipulated in Section 37 of the NDPS Act in the case of petitioners Javaid Ahmad Dar and Imtiyaz Ahmad Mir are made out.
18) Apart from the above, the petitioners Javaid Ahmad Dar and Imtiyaz Ahmad Mir, are in custody for the last about more than one and half years and the trial of the case is nearing its completion. At this P a g e | 10 Bail App No.81 /2022 stage, in case above named two petitioners are enlarged on bail, there is hardly any apprehension of tampering of the prosecution witnesses.
19) However, no case for grant of bail is made out in favour of petitioner Parvaiz Ahmad Dar against whom there is evidence on record to show that he is, prima facie, involved in offence relating to possession of commercial quantity of contraband substance.
20) For the foregoing reasons, the application is partly allowed and petitioners Javaid Ahmad Dar and Imtiyaz Ahmad Mir are admitted to bail subject to the following conditions:
(i) That they shall furnish bail bond and personal bond in the amount of Rs.1.00 lac (rupees on lac) with one surety of the like amount to the satisfaction of the trial court;
(ii) That they shall appear before the trial court on each and every date of hearing;
(iii) That they shall not leave the territorial limits of Union Territory of J&K without prior permission of the trial court;
(iv) That they shall not tamper with the prosecution witnesses/evidence;
(v) That they shall not indulge in the similar activities;
21) The bail application to the extent of petitioner Parvaiz Ahmad Dar shall stand dismissed.
(SANJAY DHAR) JUDGE Srinagar, 21.10.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No