Jammu & Kashmir High Court
Mohd. Shafi vs State on 8 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A. No. 97/2017
Date of order: - 08.09.2017
Mohd. Shafi Vs State.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Applicant/Petitioner(s) : Mr. D.K. Khajuria, Advocate.
For the Respondents(s) : Mr. L.K. Moza, AAG.
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. for grant of bail.
The facts giving rise to filing of the instant application, briefly stated are that, the petitioner was arrested on 04th March, 2017 by the police of Police Station, Kathua and the prosecution has alleged in the charge sheet that the petitioner was stopped by the ASI and two Constables near Shakti Model School, Kathua at about 6.30 P.M when he was riding Motorcycle bearing Registration No. PB58F/5044 and on search, 100 grams of charas (narcotic) was recovered from him and one Tridoo Ram, as alleged in the charge sheet, produced by the police in the Court of learned Principal Sessions Judge, Kathua on 04th April, 2017 and said Tridoo Ram was bailed out on 07th March, 2017 by the learned Special Mobile Magistrate (Sub-Judge), Kathua and the charge sheet was produced in the Court of learned Principal Sessions Judge, Kathua, where the trial is pending and one prosecution witness has been recorded in the said case. The prosecution has cited 14 witnesses and only one witness has been B.A. No.97 of 2017 Page 1 of 7 2 recorded and there is no aspect of ending the trial in near future. The petitioner further submits that it has also been alleged in the charge sheet that the petitioner on enquiry has told the said police party that he has kept the narcotic in his quarter. It is submitted that it is also alleged in the charge sheet that the house of the petitioner was searched and 600 grams of narcotic was recovered from his quarter. The petitioner also submits that he denies that 100 grams was recovered from his pocket, when he was riding the motorcycle and thereafter, 600 grams was recovered from his quarter.
2. The petitioner also submits that the petitioner moved the bail application before the learned Sessions Judge, Kathua, but said bail was rejected vide order dated 30th May, 2017 by the learned Sessions Judge. It is further submitted that the learned Sessions Judge, Kathua has observed that the quantity of Charas, which has been recovered and seized, does not fall within the category of commercial quantity, as such, the provisions of Section 37 of the NDPS Act are not attracted in the present case. The alleged contraband in the charge sheet is 700 grams, which is not a commercial quantity as per the schedule of NDPS Act and the same is intermediate quantity. Therefore, the Section 37 of the NDPS Act is not applicable.
3. It has been further submitted by the petitioner that from the charge sheet, it is clear that the police has not proceeded as per Section 50 of the NDPS Act and there is non compliance of Sections 50 and 42 of the NDPS Act and non-compliance of Sections 50 and 42 of the NDPS Act. The arrest of the petitioner is liable to be set aside unless non-compliance is otherwise justified. The petitioner submits that the alleged allegation against the petitioner is that he made disclosure about the fact that the narcotic is lying in his quarter. In this view of the matter, it is the abundant duty of the police to produce the petitioner before the Gazetted B.A. No.97 of 2017 Page 2 of 7 3 Officer or Magistrate, but this mandatory provision of law has not been observed, as provided in Sections 42, 43 and 44 of the NDPS Act and also that without search warrant, the quarter was searched, which is also not in accordance with Section 42 of the NDPS Act, i.e., after sunset. Therefore, the petitioner is also liable to be admitted to bail, as the civil liberty of the petitioner has been curtailed. The petitioner submits that in the present case, another accused has been admitted to bail. The co- accused cannot be treated differently though the petitioner is a member of police force.
4. It is further submitted that there is no allegation against the petitioner that he would jump over the bail or tamper with the evidence. The petitioner submits that as the alleged information was received by the police party, the said information was to be taken down in writing under Sub-Section (1) of Section 42 of the NDPS and also there is non compliance of Section 50 of the NDPS Act. The petitioner undertakes to abide by all the terms and conditions, to be imposed upon him while admitting him on bail.
5. The objections to the instant bail application have been filed by the respondent. In the objections, the respondents has submitted that the application for grant of bail in FIR No. 64 of 2017 under Sections 8/15 NDPS Act registered with the Police Station, Kathua is not maintainable as the investigation is still going on and has reached at a crucial state. The applicant/accused is involved in a very serious offence, which is not bailable. The applicant/petitioner, in association with his other co- accused, was involved in dealing with potent narcotic substance, namely, Charas. The said narcotic substance weighing 100 grams was recovered from the person of the accused by the police and another 100 grams from the other accused, who was riding with him on his Motorcycle bearing Registration No. PB58F-5044 on the public road and which is frequented B.A. No.97 of 2017 Page 3 of 7 4 by large number of people at all hours of the day. The police also recovered further 600 grams of Charas from the residence of the accused. This recovery was affected after the disclosure made by the petitioner. The petitioner being the main accused in the FIR, as he had been dealing in the Charas and also storing it at his residence for selling purposes and hence, this bail application, which he had moved before the Sessions Court, Kathua had been rightly rejected. No ground has been made out by the petitioner in support of his bail application and no new circumstances have been arisen in the intervening period from the date when his bail application was rejected by the Sessions Court, Kathua till he filed the present application. It will be worthwhile to keep in consideration the fact that the petitioner is working in the Police Department and posted in Kathua, where he has been allotted an residential quarter also. The Charas weighing 600 grams was recovered from the very government quarter, where he is residing. There is no question of police having falsely or deliberately involved the petitioner in the case involving very serious offences, which are stringently punished. That working in the Disciplined Belt Force meant to check and prevent crime. The conduct of the petitioner is extremely reprehensible for indulging in the trade of narcotics under the assurance and the impression that he would not be suspected of the offences, as being uniformed police person. Granting bail to the petitioner would result in demoralization of all the right thinking and the public spirited people, who are concerned because of the spreading drug menace amongst the youths.
6. I have considered the submissions of learned counsel for the petitioner and learned Senior Addl. AG representing the State.
7. Section 37 of the NDPS Act, 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)-B.A. No.97 of 2017 Page 4 of 7 5
(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 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 the perusal of this Section, it is manifest 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 have been found in possession of 700 gm of charas ; its small quantity is 100 gm and commercial is 1000 gm as per schedule of NDPS Act. The accused have this been found in possession of quantity which is in between commercial and small quantity. In this way rigor of section 37 of Act is not applicable.
B.A. No.97 of 2017 Page 5 of 7 69. In 2008 (3) JKJ 410 (HC), in case titled Tariq Ahmad Dar and another Vs. State and others, the Hon'ble 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 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 rigor of Section 497 Cr.P.C is also not applicable.
B.A. No.97 of 2017 Page 6 of 7 711. Applicant is in custody since 4.3.2017 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 petitioner.
12. Petitioner 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 trial.
b) That he shall not leave territorial jurisdiction 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 08 .09.2017 Vijay B.A. No.97 of 2017 Page 7 of 7