Jammu & Kashmir High Court
Vijay Kumar Aged 38 Years S/O Tej Ram R/O vs Union Territory Of Jammu & Kashmir ... on 30 January, 2023
Author: Mohan Lal
Bench: Mohan Lal
S. No.06
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
2.
3.
4.
5.
6.
B.A No. 77/2022
Reserved on:- 21.12.2022
Pronounced on:- 30.01.2023
1. Vijay Kumar aged 38 years S/o Tej Ram R/o ....Petitioner(s)
Jhathakota, Tehsil Mongar District
Udhampur (a/p lodged in Sub-Jail Reasi).
2. Shankar Chand, age 31 yrs S/o Sansar Chand
R/o Village Sarhi Tehsil Surjandhar District
Reasi (a/p lodged in Sub-Jail Reasi).
Through :- Rozina Afzal, Advocate.
V/s
Union Territory of Jammu & Kashmir through ....Respondent(s)
Police Station Katra District Reasi.
Through:- Mr. Suraj Singh, GA.
7.
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
1. Petitioners have invoked the jurisdiction of this court for seeking bail in case FIR No. 31/2017 dated 21-02-2017 u/ss 8,20,29 NDPS Act registered with Police Station Katra on the grounds, that aforesaid FIR has been registered on the basis of false allegations as the police concerned after two (2) years of lodging of the FIR arrested the petitioners, consequently a challan was presented before the competent court of law which is pending disposal and since then the petitioners are in Judicial Custody and facing the trial. It is averred, that from the bare perusal of the challan including the statements of the witnesses there is no iota of evidence against the petitioners which connect them with the alleged commission of offences, prosecution has failed to establish from the evidence on record that what is the source of information regarding the arrest of the petitioners, after two (2) years of the alleged commission of offence and moreover when the case of the prosecution is that one passenger was travelling with the accused in his car and when the car was stopped by the police at naka point, accused No.1 was found with the contraband and the passenger consequently ran away from the spot and could not be traced because of the darkness. It is moreso averred, that there is level of ambiguity in the challan with regard to the arrest of the petitioners, nothing has been recovered from the possession of petitioners and it is unknown that why they have been charged for offence under section 29 of the 2 B. A No. 77/2022 NDPS Act, prosecution case with respect to the petitioners is bound to be dismissed as such it has willfully protracted the trial till date with a view to ensuring that the petitioners continue to languish in incarceration, petitioners are in custody for more than one and half years, petitioners have failed to secure bail from the court below as their bail applications have been dismissed on 30.12.2021, petitioners are young people without any criminal history and have deep roots in the society therefore the question of their absconding is remote, all the prosecution witnesses in the challan are official witnesses (Govt. Employees) therefore cumulatively chance of tempering with the witnesses is also remote, petitioners undertake to abide by all the terms and conditions which this Court may impose while considering their release on bail and moreso they will remain present before the trial Court on each and every date of hearing.
2. Respondent has opposed the bail on the grounds, that the accused persons are involved in a very heinous offence and if bail is granted to them it will send wrong message to the society, that on 21.02.2017 Sgct Raj Kumar No. 399/RSI posted at PCP Moori reported in the Police Station and produced a docket submitted by I/C PCP Moori written in Urdu that he along with Krishan Chand ASI and SPO Mumtaz Din were performing the routine checking/frisking duty, during checking at about 09.50 pm one vehicle Car Icon bearing registration No. JK02R-2577 on its way from Jammu towards Katra was stopped for checking and conducted enquiry from the driver of the vehicle, on enquiry he disclosed his name as Vijay Kumar @ Biju S/o Tej Ram Caste Brahmin R/o Thatha Kote Tehsil Moungri District Udhampur and also conducted enquiry from the passenger who sat in the vehicle, who took advantage of darkness fled away from the spot in the bushes, during checking a white colour thalla was found which was kept under the seat of vehicle from which 11-packets of charas like substance were recovered though it has been clearly shown that the said persons do the business of selling and purchasing Charas, on the basis of above facts the said persons committed offence u/s 8/20 of the NDPS Act. It is contended, that on receipt of the docket and on the request of I/C PCP Moori a case under FIR No. 31/2017 stands registered at Police Station Katra and the investigation of the case was entrusted to SI Mohd Ashraf ExJ-115712, that during the course of investigation I.O visited the spot and as per the identification of I/C PCP Moori prepared site plan, seized the contraband substance weighing 4kg 500 gms (03kg 700 gms pure charas and 800 gms empty packets) and thereafter prepared the exhibits marked as A. A-1 and A-2. Mark "A" contains 03 kg 700 gms and mark "A-1" and "A-2" contains 150/150 gms each; all the exhibits were sealed on spot 3 B. A No. 77/2022 in presence of witnesses with a ring and ring has been handed over to Sgct. Shabir Ahmed 298/RSI and seized the vehicle bearing registration No. JK02R/2577 in the case as an evidence and conducted enquiry from the eye witnesses and recorded statement of the witnesses u/s 161 Cr.P.C thereafter the exhibits have been got resealed from the Executive Magistrate Ist Class Katra and the letter has been obtained from the office of SDPO Katra for submitting exhibits marked as A-1 to FSI Jammu for chemical analysis and obtained receipt. It is moreso contended, that during investigation I.O searched the accused persons namely Vijay Kumar @ Biju S/o Tej Ram Caste Brahmin R/o ThathaKote Tehsil Moungri District Udhampur and Shankar Singh S/o Sansar Chand caste Lohar R/o Bagdar Tehsil & District Reasi and arrested both the accused on 10.09.2019 in the said case, prayer has been made for dismissal of bail application.
3. Ld. Counsel for the petitioners while reiterating the grounds taken in averments of bail application, has vehemently sought release of petitioners on bail by projecting arguments, that the petitioners have been falsely implicated in the case as both of them have been arrested after two (2) years of lodging of the FIR and since then the petitioners are in Judicial Custody and facing the trial. It is argued, that nothing has been recovered from the possession of petitioners and that is why they have been charged for the offence under Section 29 of the NDPS Act, police has failed to establish the connection of the petitioners with the offence and from the last ten (10) months no prosecution witnesses have been recorded by the trial court even and it has willfully protracted the trial even though all the prosecution witnesses cited in the challan are official witnesses (Govt. employees). It is moreso argued, that the personal liberty granted under Article 21 of the Constitution of India is more precious and is to be given more weight and preference than any other right, even the Hon'ble Supreme Court has held that the fundamental right is the bedrock of the constitution, petitioners in the present case are young people and first offenders without any criminal history have deep roots in the society, therefore, they may be released on bail. In support of her arguments, learned counsel has relied upon the judgments reported in, (i) 2022 Legal Eagle 220 [Amritpal Singh Versus State of Punjab] & (ii) AIR Online 2021 J&K 240 [Mushtaq Ahmad Katoch V. UT of J&K].
4. Ld. GA for respondents has strenuously opposed the bail by canvassing arguments, that petitioners have committed very heinous offence u/s 8/20/29 of NDPS Act as on the day of occurrence on 21-02-2017 at 9.15pm A-1 Vijay Kumar while driving his vehicle/car Icon bearing registration No. JK02R/2577 4 B. A No. 77/2022 from Jammu towards Katra with another person A-2 sitting in the car, when reached at PCP Moori Katra, the vehicle was stopped by police for checking and during checking a white colored Thalla was found from the vehicle which was kept under the seat of vehicle from where 11 packets of charas weighing 4 kg 500 grams (3 kg 700 grams pure charas & 800 grams empty packets) were recovered, but both the accused taking advantage of darkness fled away from the spot. It is argued, that the quantity of contraband charas is of commercial nature, therefore, rigor contained u/s 37 of NDPS Act applies with full force as law is settled, that a person accused of an offence u/s 19/24/27-A & also for commercial quantity shall only be released on bail if the court is satisfied that, (i) there are reasonable grounds for believing that he is not guilty of such offence, & (ii) that he is not likely to commit any offence on bail. Prayer has been made for dismissal of bail application.
5. I have heard learned counsel for the parties and gone through the relevant law on the subject matter. At the outset, it is pertinent to set forth that the allegations against petitioners are, on 21-02-2017 at 9.15pm A-1 Vijay Kumar while driving his vehicle/car Icon bearing registration No. JK02R/2577 from Jammu towards Katra with another person A-2 sitting in the car, when reached at PCP Moori Katra, the vehicle was stopped by police for checking and during checking a white colored Thalla was found from the vehicle which was kept under the seat of vehicle from where 11 packets of charas weighing 4 kg 500 grams (3 kg 700 grams pure charas & 800 grams empty packets) were recovered, but both the accused taking advantage of darkness fled away from the spot.
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 rejecting bail and setting aside the order of the High Court granting bail to the accused for possessing commercial quantity of contraband as the High Court did not discuss the two mandatory conditions appearing in section 37 of the Act viz; (i) that the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence &
(ii) that the person is not likely to commit any offence on 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:-5 B. A No. 77/2022
(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.
(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 another case law reported 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 possessing commercial quantity of contraband in para 15 of the judgment held as under:-
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.
Ratios of 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 twin findings regarding, (i) that the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence & (ii) that 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 6 B. A No. 77/2022 N.C.B versus Krishan Lal [AIR 1991 S.C 588] handed down/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".
7. In the case in hand, out of total 11 prosecution witnesses listed in the charge sheet, till date three prosecution witnesses viz; PW-SPO Mumtaz Din, PW-Raj Kumar Sgct and PW-ASI Krishan Chand have been recorded and the remaining eight important witnesses are yet to be recorded. The witnesses so far recorded have not turned hostile towards the prosecution. It is settled position of law that at the stage of granting bail, court can only go into the question whether prima-facie case is established against accused and cannot go into the evidentiary value/credibility and reliability of the prosecution witnesses. Petitioners/accused as per the allegations against them, on the date of occurrence on 21-02-2017 at 9.15 pm while driving vehicle Icon Car bearing registration No. JK02F/2577 by A-1 alongwith A-2 sitting in the said car was stopped for checking at PCP Moori Katra and from the said car during checking contraband charas pure in nature weighing 3 kg 700 grams of commercial quantity was recovered, but taking advantage of the darkness, petitioners/accused fled away from the spot, went absconding and were finally apprehended on 10-09-2021 after almost 2 ½ years. It is unambiguously reiterated, that petitioners have been found in possession of 03kg 700 grams pure charas which is huge quantity of commercial nature as the small quantity is 100 grams and commercial quantity starts from 1 kg. In 2022 Legal Eagle 220 (Amritpal Singh versus State of Punjab) relied by Ld. Counsel for petitioners, Punjab & Haryana High Court granted bail to the accused indicted under the rigor contained under Section 37 of NDPS Act on the ground, that there are arguable points whether the documents in question have been prepared in accordance with law and whether or not they indicate towards serious laps in the case of prosecution and in the challan out of 16 witnesses none were examined and the trial was likely to take time. After perusal of the facts of the case law (Supra), I respectfully disagree with the view taken by the Punjab & Haryana High Court as the twin conditions, (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 have not been discussed and appreciated by Punjab 7 B. A No. 77/2022 & Haryana High Court. In AIR Online 2021 J&K 240 [Mushtaq Ahmad Katoch Vs. UT of J&K], relied by Ld. Counsel for petitioners, a Co-ordinate Bench of this Court granted bail to accused Mushtaq Ahmad for the reasons that from his possession as per the contents of charge sheet nothing was recovered, whereas, from the possession of co-accused namely Parvaiz Ahmad and Tauqeer Ahmad on 20-06-2019 commercial quantity of charas weighing 1 kg 900 grams was recovered. The case laws (Supra) relied upon by Ld. Counsel for petitioners are distinguishable and inapplicable to the facts of the bail application in hand.
8. It is trite law, that at the stage of dealing with cases regarding bail, a detailed examination of evidence and elaborate documentation of merits of the case are not to be undertaken and as in the case in hand this Court prima-facie finds the involvement of the accused then the bail is not to be allowed/granted to them. Even at this stage, 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 petitioners is against the society and by their criminal activities, they are 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 petitioners operating in a manner as the smuggler of contraband charas, is destructive and is aimed to destroy the social fiber of the country, therefore, curtailment of their liberty is reasonable and rigor contained u/s 37 is applicable with full vigor. The act of petitioners is not only shocking but outrageous in contours. The granting of bail to the petitioners would lead to the danger of the course of justice being thwarted, therefore, I hold that 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.
9. Disposed of accordingly.
(Mohan Lal) Judge Jammu 30.01.2023 Vijay Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No