Indian Kanoon - Search engine for Indian Law

Jammu & Kashmir High Court

Ghulam Hassan vs State Of J&K; on 3 November, 2018

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

                        HIGH COURT OF JAMMU AND KASHMIR
                                    AT JAMMU
B. A. No. 148/2018
                                                          Date of order: 03.11.2018
 Ghulam Hassan                              Vs.                          State of J&K
Coram:

             Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner/appellant(s)          :    Mr. M. A. Goni, Sr. Advocate with
                                          Ms. Mehak Fatima Malik, Advocate
For respondent (s)            :           Mr. Ajaz Lone, GA.

i/       Whether to be reported in                     Yes/No
         Press/Media?

ii/      Whether to be reported in                     Yes/No
         Digest/Journal?

1. This is an application filed under Section 498 Cr.P.C. read with section 37 of NDPS Act for grant of bail.

2. The facts giving rise to the filing of instant application, briefly stated, are that the applicant is a senior citizen, aged about 72 years, and has established his own business in the form of a shop at Prem Nagar, Doda and earns his livelihood by selling lamb mutton. It is contended that he has been falsely implicated in a case FIR No.19/2018 of Police Station Chanderkote for offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and was accordingly, arrested. It is further contended that as per the charge sheet, the allegations contained in the docket purported to have been sent by ASI Harnam Singh to Chanderkote Police Station for registration of case, alleges recovery of 700 gms. of charas on personal search of the applicant; and that the contraband alleged to have been seized though is more than small quantity but is admittedly less than commercial quantity.

Thereafter, the applicant filed bail application before the trial Court on 30.07.2018 and the Principal Sessions Judge (Special Judge) Ramban rejected the same vide order dated 20.08.2018.

3. The respondent-State has filed its objections, wherein it has been stated that on 22.04.2017 while on naka duty during checking of passengers travelling in one Matador bearing No.JK06-0383, 19 Chillan of charas were recovered from the possession of one passenger, namely, Ghulam Hassan and on this a docket was written by ASI Harnam Singh and sent to the Police Station Chanderkote for registration of FIR and accordingly, FIR No.19/2018 under section 8/20 of NDPS Act was registered. During the course of investigation, the place of occurrence was visited by SHO concerned along with SPO Kulbir Singh 760/SPO at Naka Point and prepared the site plan. It is further stated that as per the evidence and FSL report, and statement of witness, offence under section 8/20 of NDPS Act was proved against the accused, namely, Ghulam Hassan and challan was produced before the Sessions Court, Ramban on 29.06.2018. It is further submitted that the accused is still lodged in District Jail Udhampur. It is further stated that the applicant is involved in a heinous crime, which carries a severe punishment and there is apprehension that the applicant may influence the prosecution witnesses and investigation of the case at its threshold. Lastly, it is prayed that the bail application be dismissed.

4. Learned senior counsel for the applicant submitted that the applicant has been falsely implicated in FIR No.19/2018 of Police Station Chanderkote under Section 8/20 NDPS Act. It is submitted that as per the prosecution story the applicant was found in possession of psychotropic substances and was booked under Sections 08/20 of NDPS Act. The applicant is in judicial custody after his arrest. It is also submitted that the bail application moved by the applicant before the trial court came to be dismissed on 20.08.2018 and that the trial court has not appreciated the evidence in its correct perspective.

5. On the other hand, learned counsel for the respondent-State has supported the order passed by the trial court and opposed the prayer for grant of bail.

6. I have considered the submissions of learned counsel for the parties and perused the record.

7. 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 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 subsection (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 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 offense. 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 700 gm of B. A. No. 148/2018 Page 3 of 5 charas; its small quantity is 100 gm and commercial quantity is 1000 gms as per schedule of NDPS Act. 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.

9. 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 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.‖

10. 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 appear 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 B. A. No. 148/2018 Page 4 of 5 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.

11. Applicant is in custody since 22.04.2017 and trial is proceeding. He cannot be kept in custody as a matter of punishment. Further, he is not a habitual offender as no previous criminal history of accused has been disclosed by police. Every person is presumed to be innocent until the accusation is proved against him/her. Bail is rule and its refusal has to be in exceptional circumstances. Prosecution has not been able to show any material warranting denial of such concession to the applicant.

12. The applicant is, thus, admitted to bail, subject to furnishing of surety and personal bond in the amount 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.

13. Bail Application is disposed of accordingly.

( Sanjay Kumar Gupta) Judge Jammu 03.11.2018 Karam Chand B. A. No. 148/2018 Page 5 of 5