Jammu & Kashmir High Court
Bharat Bhushan vs Union Territory Of J&K And Others on 4 June, 2021
Bench: Dhiraj Singh Thakur, Puneet Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
Pronounced on: 04.06.2021
CrlM No. 150/2020
CrlM No. 311/2020
In
Crl A (D) No. 02/2020
I
Bharat Bhushan .....Petitioner(s)
Through :- Mr. Sunil Sethi, Sr. Advocate with
Ms. Veenu Gupta, Advocate.
v/s
Union Territory of J&K and others ......Respondent(s)
Through :- Mr. Aseem Sawhney, AAG
Coram:
::: : HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
CrlM No. 150/2020
1. The appellant along with co-accused Aaqib Ahmed Mir and Ghulam Nabi Bhat stands convicted by the Court of learned Additional Sessions Judge, Jammu for the offences under Section 8/20/29 NDPS Act. The trial court vide order dated 01.01.2020 sentenced all the accused to undergo rigorous imprisonment for a period of 12 years and a fine of Rs. 1,00,000/- and in case of failure to deposit the amount the accused to further undergo six months rigorous imprisonment.
2. The present appellant-Bharat Bhushan through the present application seeks suspension of sentence and grant of bail on the grounds mentioned in the appeal and the application.
2 CrlM No. 150/2020
3. The objections to the application have not been filed. However, learned AAG has argued the application.
4. Before proceeding further, it may be profitable to state factual aspects of the case as projected by the prosecution against the accused before the trial court. The occurrence is stated to be of night hours of 29.08.2016 near Bamyal Morh, when the appellant, Bharat Bhushan along with the co- accused in the challan namely Aaqib Ahmed Mir and Ghulam Nabi Bhat is stated to have been apprehended as they were engaged in transaction with regard to the narcotic substance Charas. The appellant was stated to be Auto Driver of vehicle bearing registration No. JK02BL-9621 and the co-accused were stated to be occupants of car bearing registration No. JK13A-8481. Seven packets containing charas were alleged to be found during checking. The F.I.R No. 175/2016 registered with police station Nagrota for offences under Sections 8/20/29 NDPS Act resulted into presentation of challan against the accused for the aforesaid offences.
5. The learned senior counsel appearing on behalf of the appellant herein has submitted that the judgment is having legal infirmities and cannot stand the test of law.
6. Learned AAG has submitted that the respondent had proved the case against the appellant beyond shadow of doubt. The appellant has been sentenced under the provisions of NDPS Act and the appellant has no case to wriggle out of the provisions of section 37 NDPS Act which is mandatory requirement before the appellant can seek relief in the application.
7. One of the arguments raised on behalf of the appellant is that the alleged occurrence as made out by the prosecution through challan and the evidence is not proved, more so, when the evidence of defence is also taken into consideration. Learned AAG has submitted that the argument has no 3 CrlM No. 150/2020 force when the evidence of the prosecution is taken into consideration and the trial Court has by elaborate reasoning negated this contention of the appellant. So far as this aspect is concerned, the court would not like to analyze this aspect in detail while dealing with the present application though apparently the court is not convinced that the argument raised by the learned counsel for the appellant in this regard is ground to grant relief to the appellant in the application.
8. The other point taken by the learned counsel for the appellant is regarding the safe custody of the article, allegedly seized during the course of occurrence. Learned counsel for the appellant has taken the Court through the statements of prosecution witnesses Mumtaz Ahmed and Pawan Abrol in order to agitate that the safe custody of the article was not proved and was fatal for the prosecution.
9. The article which was seized on 29.08.2016 reached the FSL on 06.09.2016 with a letter/endorsement dated 05.09.2016 of SDPO Nagrota through ASI Jatinder Rakwal of Police Station, Nagrota as per the statement of PW Pawan Abrol from FSL Jammu. PW Mumtaz Ahmed was posted as Muharir in Police Station, Nagrota and has deposed regarding the custody of the article seized during the course of occurrence and its movement from the malkhana on the dates as given by him in the statement. The counsel for the appellant has argued that the very statement of this witness itself makes out that the prosecution failed to prove the safe custody of the charas right from its seizure till it was received by the FSL and thus the tampering of the sample of the narcotic substance cannot be ruled out. This circumstance is itself sufficient to grant bail to the appellant. Learned AAG has argued that the trial Court has duly taken into consideration the aspect of safe custody of the article in its judgment and no fault can be found in the same. 4 CrlM No. 150/2020
10. The aspect of safe custody of the article during the course of investigation is dealt at length in the judgment impugned in the present appeal. The argument raised on behalf of the appellant on this facet of the matter does not apparently convince the court for allowing the application in hand on that basis. Indeed, the same is subject to final determination when the appeal is heard on merits.
11. It may be suffice to mention herein that the recovery of Charas is held to be of commercial quantity by the trial Court. It cannot be denied that the appellant has to come out of the rigors of Section 37 of the NDPS Act before he can seek relief in the application.
12. In Sheru Vs. Narcotics Control Bureau (Criminal Appeal Nos. 585-586 of 2020), decided on 11.09.2020, the Hon'ble Apex Court held as under :-
"We have given a thought to the matter and there is no doubt that the rigors of Section 37 would have to be met before the sentence of a convict is suspended and bail granted and mere passage of time cannot be a reason for the same."
13. The Court is not convinced that the appellant has been able to meet the rigors of Section 37 of NDPS Act so as to get relief in the present application.
14. The nature of offence can never be lost sight of by the Court while deciding the prayer for suspension of the sentence and grant of bail to the convict. The appellant cannot seek bail in such like cases as a matter of right keeping in view the nature of the offence and the punishment which is prescribed under the provisions of the Act.
15. The appellant having failed to obtain relief in the application on merits could still plead for his release on bail on account of his long 5 CrlM No. 150/2020 incarceration but this circumstance also does not favour the appellant in a case like the present one as is held by the Apex Court in case of Sheru (supra). In any case, the appellant who has been sentenced to suffer rigorous imprisonment for a period of 12 years has undergone only a meager part of about two years till date as per the nominal roll submitted by Superintendent District Jail, Jammu.
16. Keeping in view the discussion made above, the court does not find merit in the application, filed for suspension of sentence and grant of bail. Needless to mention, any observation made in the order is confined to the disposal of the present application and shall have no bearing on the merits of the main appeal. The application is dismissed.
17. The main appeal shall come up for hearing on its own turn.
(Puneet Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu
04.06.2021
Shammi
MUNEESH SHARMA
2021.06.07 13:43
I attest to the accuracy and
integrity of this document