Jammu & Kashmir High Court
Firdous Ahmed vs Union Territory Of J&K on 13 July, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 269
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Bail App No. 42/2021
Firdous Ahmed .....Appellant/Petitioner(s)
Through :- Mr. S. A. Hashmi, Advocate
v/s
Union Territory of J&K .....Respondent(s)
Through :- Mr. Sunil Malhotra, GA
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
The present bail application has been filed by the petitioner seeking bail in FIR bearing No. 16/2020 for commission of offences under sections 8, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act) after the bail application of the petitioner was rejected by the learned Sessions Judge, Doda vide order dated 29.10.2020.
It is submitted that no recovery has been effected from the petitioner and the alleged contraband i.e. Heroin has been recovered from the Shakir Hussain alone. It is also stated that even in the FIR, name of the petitioner does not figure. On these two grounds only, the petitioner is seeking bail.
Response stands filed by the respondent in which it is stated that huge quantity of contraband was found from the possession of the accused and the petitioner is an associate of Shakir Hussain and further that the rigors of section 37 of the NDPS Act are applicable. It is also contended that due to rising the menace of drugs, the younger generation is being destroyed. 2 Bail App. No. 42/2021
Mr. S. A. Hashmi, learned counsel for the petitioner has reiterated the grounds those have been taken in the bail application. He has further argued that the section 42 of the NDPS Act has been flagrantly violated.
Per contra, Mr. Sunil Malhotra, learned Government Advocate has vehemently argued that the petitioner has to come out of the rigors of section 37 of the NDPS Act and further whether the provisions of section 42 of the Act are applicable or not, the same are disputed questions of facts.
The prosecution story as is evident from the challan filed against the petitioner as well as other co-accused is that on 03.02.2020 FIR was registered on source information that the accused, namely, Shakir Hussain along with unknown persons has been travelling in a vehicle bearing registration No. JK06A 3964 along with the contraband and pursuant to this, FIR bearing No. 16/2020 (supra) was registered by the Police Station, Doda. The vehicle was stopped and during personal search of Shakir Hussain, 730 grams of Heroin was recovered. No recovery has been effected from the petitioner. Nonetheless, after the conclusion of the investigation, the challan for commission of offences under sections 8, 21 and 29 of the NDPS Act was filed against the petitioner and other co-accused and the same is sub judice before the learned Sessions Judge, Doda. The charges are yet to be framed.
Heard and perused the record.
So far as the quantity of contraband is concerned, the same is the commercial quantity and as per Notification No. SO 1055(E) dated 19.10.2001, the commercial quantity of Heroin is 250 grams. Admittedly the quantity of alleged contraband is 730 grams so rigors of section 37 of the NDPS Act are squarely applicable in the instant case.
3 Bail App. No. 42/2021
As the petitioner has been roped in by invoking section 29 of the NDPS Act, this Court has restrained itself from returning any finding vis a vis applicability of section 29 of the NDPS Act as the charges are yet to be framed.
At this stage, learned counsel for the petitioner submits that he does not press the issue with regard to the applicability of section 42 of the NDPS Act as the charges are yet to be framed and also at this stage there is nothing before this Court to form an opinion within the meaning of section 37 of the NDPS Act that the petitioner is not guilty of commission of aforesaid offence.
For all what has been discussed above, this bail application is devoid of any merit, as such, the same is dismissed. However, the petitioner shall be at liberty to avail the appropriate remedy as available under law.
(Rajnesh Oswal) Judge JAMMU 13.07.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No