Jammu & Kashmir High Court
Kulbir Singh vs State on 1 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A No. 148/2017
MP No.1/2017
Date of order:- 01. 09.2017
Kulbir Singh V. State of J&K.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. Anil Sethi, Advocate.
For the respondent(s) Mr. S.S.Nanda, Sr. AAG.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Through the present bail application, Petitioner-Kulbir Singh seeks bail, inter alia, on the ground that he has been falsely implicated in a criminal case FIR No.89/2017 registered at Police Station, Miran Sahib under Section 8/15 NDPS.
2. It is stated in the application that the petitioner has been detained on 21.06.2017 while he was driving his truck. It is alleged that truck was carrying 13 kg poppy straw (Bhukki). It is stated that 13 kg of poppy straw is not commercial quantity and therefore, the rigors as contained in NDPS Act regarding grant of bail shall not be applicable. The applicant is in custody ever since the date of his arrest and is presently in jail after completion of the investigation. The investigation after completion has resulted in presentation of challan. It is further stated that a bail application was moved earlier during the investigation which was disposed of by the Court of Additional Sessions Judge on 26.07.2017 with the observation that the grant of bail in the present case would be governed by provisions of 497 Cr.P.C. and not NDPS Act. The Court also observed that since the B.A No.148/2017 Page 1 of 6 investigation is pending therefore, the grant of bail was not appropriate. The second bail application moved before the Court of 2nd Additional Sessions Judge was also rejected on the ground that there was no change of circumstance between the first bail and the present one. On presentation of challan another bail application was moved before the Principal Sessions Judge on 03.08.2017, the said application was moved on the ground that quantity in question was not commercial. It is further stated that the petitioner old person suffering from various ailments should not be kept in jail. It is further stated that the learned 2nd Addl. Sessions Judge, even after noticing the legal position and the facts as were contained in the charge sheet rejected the bail application on the grounds which are neither relevant nor germane to the issue as regards grant of bail. The Court below have admitted and acknowledged that grant of bail to the petitioner has to be governed by provisions of 497 CrPC and not NDPS Act and this is the true position also. Despite making itself aware of this legal position and the fact that the petitioner is suffering from serious ailments, the bail application has been rejected on thoroughly untenable and uncalled for grounds. The petitioner submits that the case against him is manipulated and falsely concocted; however, the applicant is in custody for the last more than 50 days.
3. On the basis of afore mentioned submissions, learned counsel for the petitioner prays that the petitioner be granted bail and he shall not violate and jump over the conditions as would be imposed by this Court.
4. Mr. S. S. Nanda, learned Senior Addl. Advocate General, has filed objections, whereby bail application is opposed stating therein that the above titled bail application is not maintainable and deserves to be dismissed as being premature and without substantial change of the circumstance between the earlier applications filed by the petitioner before the Court of learned Additional Sessions Judge, Jammu, 2nd Additional Sessions Judge, Jammu and the learned Principal Sessions Judge, Jammu B.A No.148/2017 Page 2 of 6 which have been dismissed on 07.07.2017, 26.07.2017 and 08.08.2017 respectively and the present application filed before this Court. It is further stated that the Hon'ble Supreme Court has laid down preposition of law regarding successive bail applications that an accused has a right to make successive applications for grant of bail, but the Court entertaining such subsequently bail applications has a duty to consider the reasons and ground on which the earlier bail applications were rejected and in such cases, the Court has also a duty to record what are the fresh grounds which persuade the court to take a view different from the one taken in the earlier applications. The menace of drug trafficking has drastically shoot up, elsewhere in the country but specially in the State of Jammu & Kashmir for the last two decades and has swollen in its venomous ambit, the young generation of the nation and also had seriously jeopardized the economy of the country. As such, in case perpetrators of this gruesome crime if let loose, there is every likelihood of repetition and continuing transportation and smuggling of alleged narcotic. The accused/petitioner has deliberately and intentionally committed very heinous offence under Section 8/15 of NDPS Act. Since there is also reasonable apprehension that in case the concession of bail is extended to the petitioner at this stage, he may abuse the liberty to subvert justice and threaten the prosecution witnesses, as such the petitioner is not entitled to be released on bail. Keeping in view the gravity of accusation, nature of evidence available and severity of the punishment provided for the offence charged under Sections 8/15 of NDPS Act, the petitioner do't deserve the discretion of grant of bail in his favour, as such, the instant bail petition is required to be rejected out rightly.
5. I have considered the submissions of learned counsel for the petitioner and learned Senior Addl. AG representing the State.
6. Section 37 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.148/2017 Page 3 of 6
(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,]."
7. 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 13 KG of poppy straws ( Bhukhi); its small quantity is 1 kg and commercial is 50 kg 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.
8. 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 B.A No.148/2017 Page 4 of 6 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."
9. 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.
10. Applicant is in custody since 21.6.2017 and trial is in progress. He cannot be kept in custody as a matter of punishment before full trial. 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 B.A No.148/2017 Page 5 of 6 been able to show any material warranting denial of such concession to the petitioner.
11. Petitioner is, thus, admitted to interim bail subject to furnishing of surety and personal bond in the amount of Rs.50,000/- each to the satisfaction of Court concerned on 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.
12. Bail application stands disposed of in the aforementioned terms.
Connected MP also stands disposed of.
(Sanjay Kumar Gupta) Judge Jammu 01.09.2017 Vijay B.A No.148/2017 Page 6 of 6