Fayaz Ahmad Dar vs Ut Of J&K Th. Station House Officer on 31 January, 2023

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Jammu & Kashmir High Court

Fayaz Ahmad Dar vs Ut Of J&K Th. Station House Officer on 31 January, 2023

1. Applicant has invoked the jurisdiction of this Court in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred to as the "Code‖) for seeking regular bail in case FIR No. 38/2019 for commission of offences under Sections 8/21/22/25/27-A/19 of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the "NDPS Act‖). It is averred, that the applicant is a permanent resident of UT of Jammu and Kashmir and is entitled to invoke the jurisdiction of this Court for his enlargement on bail; that the applicant came to be arrested by the police of Police Post Hari Market Jammu on 27.05.2019 in a false and frivolous FIR as the story projected by the respondent is that a Creta Car white in colour without number having two persons seated inside it including the driver was seen coming from JP Chowk towards Dance Gate, which vehicle was intercepted near naka point by the police party for checking and the during the checking one raxin bag light blue in colour and printed with sky bag and pacific 35 was found kept between driver and front seat of passenger which was searched and during search one polythene bag pink in colour containing about 250-280 grams heroin like substance was found and recovered alongwith huge cash in the shape of bundles totalling Rs. 12,00,560/- (Rupees Twelve Lacs, Five Hundred and Sixty). It is moreso averred, that the 2 B.A. No. 238/2022 applicant was initially attributed with the commission of offences under Sections 13/17/18/21/39 and 40 of the Unlawful Activities (Prevention Act) 1967 (hereinafter referred to as the "Act of 1967") but later on the said offences were deleted and charge-sheet was produced against him for commission of offences only under NDPS Act; that the applicant also got discharged by the Court of 3rd Additional Sessions Judge Jammu (Special Judge under Section 22 of N.I. Act) (hereinafter referred to as the "trial Court‖) vide order dated 08.04.2022 as the role of the applicant was not found for commission of offences attributed against him for N.I Act; that after discharge the applicant filed an application for grant of bail before the learned trial Court, which vide its order dated 28.05.2022 rejected the bail application of the applicant; that prima-facie there is no involvement of the applicant in the case in hand in NDPS Act, he is innocent and has never been involved in criminal/nefarious activities, the quantity of heroin as alleged is 260 grams which though is a commercial quantity but rigour of Section 37 of the Act is not attracted, as negation of bail is a rule and its grant is exception under NDPS Act, however, the case of the applicant does not fall in such exception; that various High Courts have rendered judgments that in commercial quantity also bail can be granted, Hon'ble Supreme Court has also categorically held that ―bail is a rule and jail is an exception". It is averred, that the applicant is survived by his old parents and four daughters, as he is the only earning hand in the family and since his arrest from 27.05.2019 for the last more than three years, family of the applicant is in starvation, that after perusal and study of the report filed under Section 173 Cr.P.C before the trial Court there is not an iota of evidence against the applicant; that the applicant will never tamper with any evidence nor abscond from the trial and will abide by all terms and conditions imposed by the Court if granted bail and the presumption of innocence which is sacred principle of criminal jurisprudence fully applies to the case in hand.

2. Respondent has opposed the bail on the grounds, that on 27.05.2019 one-Creta white coloured Car was intercepted by the police party at naka checking point at Vivekanand Chowk Jammu coming from JP Chowk and during the checking, one raxin bag light blue/black colour printed sky bag and pacific 35 kept between the driver and co-driver of the vehicle was searched, wherefrom, heroin like substance weighing 250-280 grams alongwith huge cash in the shape of bundles in the bag were found and recovered, on questioning, the driver disclosed his name as Arshad Ahmed Allie and the person boarding the said 3 B.A. No. 238/2022 vehicle disclosed his name as Fayaz Ahmed Dar (applicant in hand) and both of them failed to justify the possession of heroin and cash, hence indicted in the impugned FIR. It is contended, that during the course of investigation, I.O seized 12.312 kg. heroin (chitta) and cash of Rs. 12,00,560/- alongwith Creta Car and arrested the accused persons, namely, (i) Mohd. Latief Dar S/o Abdul Aziz Dar R/o Sonigam near Nai Basti District Kulgam, (ii) Arshad Ahmed Allie S/o Mohd. Akram Allie R/o Astan Mohalla Sangham Tehsil Zainpora District Shopian,

(iii) Fayaz Ahmed Dar S/o Abdul Salam Dar R/o Subhanpora Bijbehara, District Anantnag, (iv) Mohd. Shafi Bhat S/o Ghulam Hassan Bhat R/o Nai Basti Arwani Bijbehara District Anantnag, (v) Mohd. Altaf @ Hafiz S/o Khadim Hussain R/o Behrooti Kanga Tehsil Kalakote District Pooch and (vi) Laddi Ram S/o Ram Lal R/o Chak Drab Khan at present Sherpur Tehsil and District Kathua, and the remaining seven accused persons got absconded, I.O after completing all the formalities produced the challan before the trial Court on 20.04.2020 which is sub-judice, prayer has been made for dismissal of the bail application.

3. Learned counsel for applicant has sought enlargement of the applicant/accused on bail by vehemently projecting arguments, that the applicant has been framed in a false and frivolous case, for the last more than three (3) years from the date of arrest of applicant on 27.05.2019 he has been languishing in jail for his no fault, ‗bail is a rule and jail is an exception', presumption of innocence lies in favour of applicant and even rigour of Section 37 of NDPS Act is not applicable as the recovery has been effected from the vehicle and not from the personal search of applicant.

4. Learned Dy. AG has strenuously resisted the grant of bail by projecting arguments, that the applicant/accused alongwith co-accused has been found carrying 250-280 grams of commercial quantity of heroin (chitta) in a white coloured Creta Car at Vivekanand Chowk Jammu on 27.05.2019 the punishment whereof is upto twenty (20) years rigorous imprisonment, rigour of Section 37 of the NDPS Act is applicable as the applicant is involved in carrying commercial quantity of contraband (heroin) and if the Court proposes to grant bail to the applicant, twin conditions, viz; (i) that the Court must be satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence, &

(ii) that the applicant is not likely to commit any offence on bail must be satisfied. It is argued, that the trial is at its infancy, charges have been framed against the applicant/accused, the drug abuse is a social malady which eats into the vitals of 4 B.A. No. 238/2022 the society and spoils the youth of the nations, the perpetrators of such crime must be dealt with iron hands, the curtailment of liberty of the applicant is reasonable and as per rigour contained under Section 37 of the NDPS Act the applicant/accused cannot be bailed out at the stage as there is every possibility that applicant/accused will abscond from the trial and prejudice the case of prosecution.

5. Heard Ld. Counsel for petitioner and learned Dy. AG for respondent. At the outset, it is pertinent to set forth that the allegations against petitioner are, that on 27.05.2019 one-Creta white coloured Car was intercepted by the police party at naka checking point at Vivekanand Chowk Jammu coming from JP Chowk and during the checking, one raxin bag light blue/black colour printed sky bag and pacific 35 kept between the driver and co-driver of the vehicle was searched, wherefrom, heroin like substance weighing 250-280 grams alongwith huge cash in the shape of bundles in the bag were found and recovered, on questioning, the driver disclosed his name as Arshad Ahmed Allie and the person boarding the said vehicle disclosed his name as Fayaz Ahmed Dar (applicant in hand) and both of them failed to justify the possession of heroin and cash, hence indicted in the impugned FIR.

6. Now, I would like to appreciate the decisions in regard to grant or refusal of bail under the provisions of Section 37 of NDPS Act.

In 2017(2) DRUGS CASES (NARCOTICS) 158 H.P. HIGH COURT SHIMLA [Kuldeep Chand Manda....Petitioner Versus State of Himachal Pradesh....Respondent], Hon'ble High Court of Himachal Pradesh Shimla, rejected bail of the accused found in possession of 1990 grams of commercial quantity of contraband [chars 1390 grams & opium 600 grams] by holding, that at the stage of bail detailed examination of evidence and merit of case are not be to undertaken and the drug abuse is a social malady, in paras 8, 9 & 10 of the judgment held as under:-

(8) It has been categorically held by the Hon'ble Apex Court that courts exercising the bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For in that manner, the principle of "presumption of innocence of an accused"

gets jeopardized; and the structural principle of "not guilty till proved guilty" gets destroyed, even though all same elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Reference in this regard can be made to Kashi Nath 5 B.A. No. 238/2022 Roy vs. State of Bihar (1996) 4 SCC 539, wherein the Hon'ble Supreme Court has held as follows:-

"6. As embedded in the criminal jurisprudence obtaining in this country, courts exercising bail indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of ―presumption of innocence of an accused‖ gets jeopardized; and the structural principle of ―not guilty till proved guilty‖ gets destroyed, even though al same elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been avoidable on this part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed.‖ (9) It is further to be remembered that at the stage of dealing with the cases regarding bail, a detailed examination of evidence and elaborate documentation of the merits of the case are not to be undertaken. The court is not required to discuss the merits and demerits of the case at this stage. It is only required to satisfy itself with (i) the nature of accusation and the severity of the punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant and (iii) prima facie satisfaction of the court in support of the charge and any order dehors such consideration suffers from non-application of mind. When all the three parameters are taken into consideration, it is prima facie established that the nature of accusation against the petitioner and the severity of punishment for which he has been charged is extremely grave and serious. Moreover the apprehension of the respondent that tin case the petitioner is let off on bail, it will be difficult to produce his presence since he is resident of Delhi cannot be said to be ill-founded. In fact, one of the considerations for grant of bail is also to secure the presence of the accused. (10) The drug abuse is a social malady. The drug addicts eat into the vitals of the society, but drug trafficking not only eats into the vitals of the economy of the country but illicit money generated by drug trafficking is often used for illicit activities. The constitution Bench of the Hon'ble Supreme Court in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 has observed as follows:-

"(4)Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a 6 B.A. No. 238/2022 country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions Against Illicit Trafficking In Narcotic Drugs & Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention".

7. In 2017 (4) Crimes 384(SC) SUPREME COURT OF INDIA [Union of India--Appellant Versus Niyazuddin Sk. and Anr--Respondent], Hon'ble Supreme Court while setting aside the order of the High Court granting bail to the accused indicted for the allegations of possessing commercial quantity of contraband and the High Court not discussing the two mandatory conditions appearing in section 37 of the Act viz;(1) the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence &(2) the person is not likely to commit any offence on bail, while rejecting bail to the accused, in paras 7,8&9 of the judgment held as under:-

(7) Section 37 of NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said section. They are:-

(1) In the case of person accused of an offence punishable under section 19.

(2) Under section 24.

(3) Under section 27A and (4)Of offences involving commercial quantity.

The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under section 37 of the NDPS Act, in case, the court proposes to grant bail to such person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr. PC or any other enactment,(1) thecourt must be satisfied that there is reasonable ground for believing that the person is not guilty of such offence; (2)that person is not likely to commit any offence while on bail.

(8)There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail. (9) Hence, we are stratified that the matter needs to be considered afresh by the High Court. Impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentious to the High Court.

8. In 2018 (5) Supreme 705 SUPREME COURT OF INDIA [Satpal Singh--Appellants Versus The State of Punjab--Respondents], Hon'ble Supreme Court while rejecting bail of an accused indicted for the allegations of 7 B.A. No. 238/2022 possessing commercial quantity of contraband in head note C& para 15 of the judgment held as under:-

(c)Narcotic Drugs and Psychotropic Substances Act, 1985 -

Section 37, 22 and 29 - Instantly quantity of drug commercial - Order could not be passed by High Court u/s 438 or 439, Cr.PC without reference to section 37 and without entering a finding on the required level of satisfaction - Impugned order set aside.

15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439Cr.P.C. without reference to Section 37 of the NDPS Act and without entering finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21.09.2017 is only to be set aside and we do so.

9. The decisions in ―Kuldeep Chand Manda's Case‖ [2017(2) DRUGS CASES (NARCOTICS) 158 H.P. HIGH COURT SHIMLA], ―Niyazuddin Sk's Case‖ [2017 (4) Crimes 384(SC) SUPREME COURT OF INDIA] &―Satpal Singh's Case‖ [2018 (5) Supreme 705 SUPREME COURT OF INDIA] (Supra) make the legal proposition abundantly clear and also settles the legal controversy at rest, that in case of the accusations against accused regarding possession of commercial quantity of the contraband, the court has to render findings regarding,(i) the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence & (ii) the person is not likely to commit any offence on bail, and if these conditions are not satisfied by the court, the accused is not entitled bail. It is apt to mention here, that Hon'ble Supreme Court in a case law titled N.C.B versus Krishan Lal [AIR 1991 S.C 588] held that ―unless conditions prescribed under section 37 of NDPS Act are not fulfilled, the court has no discretion to relax these conditions in order to give the benefit of bail to an accused‖. It is trite law by the authoritative pronouncement by Hon'ble Supreme Court of India in a case law reported in, AIR 2007 S.C 451 (Rajesh Ranjan Yadav alias Pappu Yadav v.s CBI through its Director), "that the interest of society outweighs the individual interest of a person and the longer period of imprisonment cannot be a ground for grant of bail".

10. Perusal of the Section 37 & ratios of the judgments (Supra) settle the legal controversy at rest that before granting bail u/s 37 of NDPS Act, the Court is to give an opportunity to oppose the application by the Public Prosecutor and the 8 B.A. No. 238/2022 Court is to satisfy itself, (i) that there are reasonable grounds for believing that the accused is not guilty of the offence under the Act and (ii) the Court is further satisfied that the accused is not likely to commit the offence while on bail. Section 37 makes it manifestly clear that where the Court prima-facie finds the involvement of the accused then the bail is not to be allowed. In the case in hand, it is unambiguously reiterated, that applicant has been found in conscious possession of 250-280 grams of Heroin (Diacetylmorphine) while transporting it in white coloured Creta Car which is huge quantity of commercial nature as the small quantity is 5 grams and commercial quantity starts from 250 grams. In the case in hand, this Court prima-facie finds the involvement of the applicant/accused, then the bail is not to be allowed/granted to him. Even at this stage when the prosecution is in the process of producing its evidence in the trial Court, no finding can be rendered, (i) that there are reasonable grounds for believing that accused is not guilty of such offence, & (ii) he is not likely to commit such offence on bail. Courts cannot lose sight of the fact that the menace of the crime of smuggling of contraband drugs is on increase and therefore, the perpetrators of the crime who are destroying the society and younger generations rendering them incapacitated by falling prey to drug abuse must be dealt with iron hands. The crime alleged against applicant is against the society and by his criminal activities, he is spoiling the young generation of the country. Such types of offences are to be dealt with severity and with heavy hands. Showing leniency in such matters would be really a case of misplaced sympathy. The criminal act of applicant is destructive and is aimed to destroy the social fiber of the country, therefore, curtailment of his liberty is reasonable and rigor contained u/s 37 of NDPS Act is applicable with full force. The act of applicant is not only shocking but outrageous in contours. The granting of bail to the applicant would lead to the danger of the course of justice being thwarted. I hold that at this stage this is a fittest case where, "Jail" and not "Bail", is the appropriate remedy. The bail application being misconceived under law, is disallowed, rejected and dismissed.

11. Disposed of accordingly.

(MOHAN LAL) JUDGE Jammu 31.01.2023 Ram Krishan Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

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