Radhey Sham Age 28 Years vs Ut Of Jammu & Kashmir on 17 April, 2023

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Jammu & Kashmir High Court

Radhey Sham Age 28 Years vs Ut Of Jammu & Kashmir on 17 April, 2023

1. Petitioner/accused has sought regular bail in terms of Section 439 of the Code of Criminal Procedure in case FIR No. 70/2020 for the commission of offences punishable u/ss 8/15 of Narcotic Drugs and Psychotropic Substances Act 1985 (for short the ―NDPS Act‖). It is averred, that the petitioner is a peace loving and law abiding citizen of India who enjoys the guarantee of fundamental rights as enshrined in part-III, in particular right to life and liberty as postulated under Article 21 of the constitution of India which cannot be curtailed without due process of law, however, the respondent has vitiated the above said right of the petitioner in the given facts and circumstance of the case; that the respondent presented chargesheet u/ss 8/15 NDPS Act in the above FIR No. 70/2020 on 17- 12-2021 in the court of Pr. Sessions Judge Udhampur in absence of accused, who later on surrendered before the trial court on 16-04-2022, whereafter, petitioner filed an application for grant of bail which was rejected by the trial court of Pr. Sessions Judge Udhampur on 16-07-2022. It is moreso averred, that the petitioner is young aged person and belongs to respectable family, however, the respondent has laid chargesheet against him before the trial court for the allegations, that petitioner was caught red handed by police on 03-06-2020 while transporting 2 Bail App No. 331/2022 poppy straw in two plastic bags of the weight of more than 52.500 kg in tractor trolley bearing registration No. JK14-D-6019, and when the police officials were completing the formalities on spot, petitioner gave a slip to the police party by jumping from the trolley and ran away from the spot by taking advantage of the darkness; that the rigors of Section 37 of NDPS Act cannot be made applicable in the case in hand as petitioner has been implicated in false and frivolous case; that the court below has passed the order dated 16-07-2022 rejecting his bail application without appreciating the material on record; petitioner immediately after gaining knowledge regarding presentation of chargesheet surrendered before the court on his own, as such, there is no likelihood of his jumping over the bail conditions if admitted to bail as the petitioner who is behind the bars for the last more than 1 year is ready to furnish bail and personal bonds to the satisfaction of the court.

2. Respondent, per contra, has vehemently opposed the bail on the grounds, that the offence committed by the accused is against society and prejudicial to the interest of general public, therefore, if the accused is enlarged on bail, there is every probability/likelihood of his tampering with the prosecution evidence, hence, the accused deserves to be kept at bay and not granted bail, moreover, the enlarging of accused on bail at this stage would encourage the offenders of the like nature. It is contended, that on 29.10.2020 police while performing patrolling duty at Malhar NHW and it's surrounding area, at about 2200 hrs when reached at Malhar, one Tractor bearing registration No. JK14D-6019 which was driven by the accused/driver from Link Road Malhar towards NHW was asked to stop for checking purpose and during checking of the said tractor, two plastic bags of yellow color were found loaded in the trolley of the said tractor, the driver/accused of the said tractor was asked to open the said plastic bags and on opening, poppy straw like substance weighing 53 kgs were recovered from the bags from the possession of the accused who due to darkness jumped from the tractor and ran away from the spot. It is moreso contended, that the contraband was taken in possession, samples for FSL examination/expert opinion were drawn and poppy straw was detected, I.O recorded the statements of witnesses u/s 161 Cr.pc, made all possible efforts to arrest the accused person, but his whereabouts could not be traced out, after completing all the legal formalities, I.O proved the offence u/s 8/15 NDPS Act against the petitioner/accused and produced the Challan against him u/s 512 Cr.pc in the Court of law on 17.12.2021, accused is involved in heinous crime which carries severe 3 Bail App No. 331/2022 punishment, therefore, there is also every apprehension that the petitioner may influence the prosecution witnesses if admitted to bail, prayer has been made for dismissal of the bail application.

3. Sh. Gagan Basotra, learned senior counsel while recapitulating the grounds urged in the bail petition, has vehemently sought release of petitioner/accused on bail by canvassing arguments, that petitioner has neither committed any offence nor he has any link with the commission of any offence, petitioner has surrendered before the Court of law on 16.04.2022 and since then he continues to be in judicial custody, moreso charges have also been framed against him and the case is at the stage of prosecution evidence. It is argued, that no contraband has ever been recovered from the possession of petitioner/accused as the same as per prosecution case has been recovered from the tractor, petitioner has voluntarily surrendered voluntarily before the trial Court and is lying in incarceration for the last more than 1 year, right to speedy trial is implicit in the broad sweep and content of Article 21, therefore the delay in the completion of trial deserves the accused to be admitted to bail. It is vehemently argued, that even Hon'ble Supreme Court of India has granted bail to an accused involved in commercial quantity of contraband ganja weighing 180 kg while relaxing the rigor of Section 37 of NDPS Act and applying the import of Section 436-A of Cr.pc, wherein, an accused if undergone detention for a period extending upto one half of the maximum period of imprisonment specified for that offence he shall be released by the court on his personal bond with or without sureties. To support his arguments, learned counsel has relied upon a recent judgment of Hon'ble Supreme Court titled MOHD MUSLIM @ HUSSAIN--APPELLANTS VERSUS STATE (NCT OF DELHI)--RESPONDENTS [Criminal Appeal NOS. of 2023 ( @ Special Leave petition (CRL) NOS. 915 of 2023)].

4. Sh. Sumeet Bhatia Ld. GA, per contra, has sought the dismissal of bail application by portraying arguments, that petitioner/accused is involved in a very heinous offence of carrying 52.500 kgs of contraband poppy straw of commercial quantity which carries minimum punishment of rigorous imprisonment of not less than 10 years but maximum of 20 years and also fine which shall not be less than 1 lac but may extent to 2 lacs in terms of section 15 of NDPS Act, mores, the rigor of Section 37 of NDPS Act is attracted with full force and therefore, petitioner/accused is not entitled bail. It is vehemently argued, that even as per the mandate of the recent judgment of Hon'ble Supreme Court relied by Ld. Counsel for petitioner/accused rendered in Mohd Muslim's Case [Criminal 4 Bail App No. 331/2022 Appeal NOS. of 2023 ( @ Special Leave petition (CRL) NOS. 915 of 2023)], accused/petitioner in the case in hand is not entitled to bail as the recovery of contraband poppy straw of commercial quantity has been effected from the possession of accused while driving the tractor, and moreso, as mandated u/s 436-A Cr.pc petitioner/accused in the case in hand has not even undergone detention for half of the period of maximum period of 20 years as mandated in Section of 20 NDPS Act. Prayer has been made for dismissal of bail application.

5. I have heard learned Sr. counsel for petitioner/accused and Ld. GA for respondent/UT. I have bestowed my thoughtful consideration to the material aspects involved in the bail application in hand, have gone through the relevant law on the subject matter very carefully and considered the ratio of judgment relied by learned Counsel for petitioner/accused.

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 (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 possessing commercial quantity of contraband without 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, 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) the court 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.

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(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. 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 to an accused indicted for the allegations of possession of 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.

The decisions rendered by Hon'ble Supreme Court in ―NiyazuddinSk's Case‖ & ―Satpal Singh's Case‖ (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".

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7. Hon'ble Supreme Court of India in it's recent judgment titled MOHD MUSLIM @ HUSSAIN--APPELLANTS VERSUS STATE (NCT OF DELHI)--

RESPONDENTS [Criminal Appeal NOS. of 2023 ( @ Special Leave petition (CRL) NOS. 915 of 2023)] relied by Ld. Counsel for petitioner/accused, while granting bail to appellant/accused lying in incarceration for the last over 7 years & 4 months indicted for commission of offences punishable u/ss 20/25/29 of NDPS Act 1985 for recovery commercial quantity of 180 kilograms of ganja not from the possession of appellant/accused but from the possession of other four (4) co-accused persons in paragraphs 16, 17 & 20 of the judgment held as under:-

16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:

―We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.‖

17. The facts in this case reveal that the recovery of ganja was made on 28.09.2015, from the four co-accused, including Nitesh Ekka. The present appellant was arrested at the behest, and on the statement of this Nitesh Ekka. The prosecution has relied on that statement, as well as the confessional statement of the present appellant; in addition, it has relied on the bank statements of Virender Singh @ Beerey, who allegedly disclosed that money used to be transferred to the appellant. As against this, the prosecution has not recovered anything else from the appellant; its allegation that he is a mastermind, is not backed by any evidence of extensive dealing with narcotics, which would reasonably have surfaced. The prosecution has not shown involvement of the appellant, in any other case. Furthermore, he was apparently 23 years of age, at the time of his arrest. It is an undisputed fact that two co- accused persons (who also, were not present at the time of raid and from whom no contraband was recovered) - the accused (Virender Singh @ Beerey) who allegedly transferred money to the appellant's account as payment for the ganja, and the accused (Nepal Yadav @ Tony Pahalwan) from whom the original insurance papers and registration certificate of the car from which contraband was seized, was recovered18 - have both been enlarged on bail. The appellant has been in custody for over 7 years and 4 months. The progress of the trial has been at a snail's pace: 30 witnesses have been examined, whereas 34 more have to be examined.

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20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra).

Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.

Ratio of the judgment (Supra) of Mohd Muslim's case makes the legal position abundantly clear, that the grant of bail cannot be fettered by section 37 of the Act as Section 436-A Cr.pc is applicable to offences under NDPS Act and the accused is only entitled to bail, ‗where no recovery is effected from the accused who was arrested on the statement of co-accused persons who were not present at the time of raid and no recovery was effected from them and they were already enlarged on bail, the progress of trial is at snail's pace'. Ratio of the judgment (Supra) is distinguishable from the facts of the case in hand. It is apt to reiterate here, that from the possession of petitioner/accused while driving tractor trolley bearing registration No. JK14-6019 police recovered 2 plastic bags containing poppy straw weighing 52.500 kgs which is of commercial nature. Petitioner/accused at the time of the recovery of the contraband, ran away from the spot, however, Challan against him was presented in the trial court u/s 512 Cr.pc on 17-12-2021. Petitioner/accused surrendered before the trial court on 16- 04-2022 and presently is lying in judicial custody in District Jail Udhampur. The maximum punishment u/s 8/15 NDPS Act is rigorous imprisonment for 20 years. As mandated by the broader parameters/guidelines of Mohd Muslim's case (Supra) by Hon'ble Supreme Court, while examining the applicability of Section 436A Cr.pc to the facts of the bail application in hand, petitioner/accused till date has undergone detention only for a period 1 year since his surrender before the trial court on 16-04-2022 and has not even undergone detention extending upto one half ( ½) of maximum period of detention of 20 years as envisaged u/s 20 of the NDPS Act, therefore, has not legally qualified for his release on bail.

8. 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 petitioner/accused is against the society and by his criminal activities, he 8 Bail App No. 331/2022 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 petitioner/accused operating in a manner as the smuggler of commercial quantity of contraband poppy straw, is destructive, and is aimed to destroy the social fiber of the country, therefore, curtailment of his liberty is reasonable. The act of petitioner/accused is not only shocking but outrageous in contours. The granting of bail to petitioner/accused would lead to the danger of the course of justice being thwarted. I, therefore, hold that this is a fittest case where, "Jail" and not "Bail", is the appropriate remedy at this stage. The case law relied upon by learned counsel for petitioner/accused is distinguishable and inapplicable to the facts of the case in hand. The bail application being misconceived under law, is disallowed, rejected and dismissed.

9. Disposed of accordingly alongwith connected CM(s), if any.

(Mohan Lal) Judge Jammu 17.04.2023 Vijay Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

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