Jammu & Kashmir High Court - Srinagar Bench
Bilal Ahmad Lone vs State Of J&K; on 14 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No.20
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B.A. No.134/2018
Date of decision:14.02.2019
Bilal Ahmad Lone v. State of J&K through SHO P/S
Watergam
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. Aazim Pandith, Adv.
For the Respondent(s): Mr. Shah Aamir, AAG
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. An application presented before learned Additional Sessions Judge, Sopore, by the petitioner herein on 30.07.2018, was rejected in terms of order passed on 08.09.2018 with the observation that the material on record reveals the commission of offence under Sections 8/22, 29 of NDPS Act and it would not be proper at this stage to exercise discretion. The learned trail court has also taken note of the fact that the action of the petitioner is threat to society and so right to liberty and free movement has to be circumscribed.
2. While recapitulating the facts in which the petitioner herein was arrested, it is being contended that allegedly 48 capsules of medicine Spasmoproxyvon Plus were seized from the petitioner and 44 capsules were seized from the personal BA No.134/2018 Page 1 of 10 search of the driver of the vehicle, as portrayed in the case by the investigating agency. The facts and circumstances, as quoted in detail, are given as:
"On 23rd of July, 2018, police were on Nakah duty. They intercepted a vehicle bearing registration No.JK09A-1755 which was boarded by the petitioiner and other person (driver). On personal search of the petitioner, 48 capsules of medicine Spasmoproxyvon Plus were seized from him and 44 capsules seized upon personal search of the driver of the vehicle. Accordingly, FIR No.98 of 2018 under Section 8/22 & 29 of NDPS Act was lodged against the petitioner. The petitioner moved a bail application before the Court of Additional Sessions Judge, Sopore, on 30.07.2018, which was rejected on 08.09.2018.
3. The petitioner has filed the instant petition under Section 498 Cr. P. C seeking his release of bail, precisely, on the following grounds:
(i) Because, the accused were in possession of only an intermediate quantity of the contraband which is 48 Capsules of Medicine Spasmoproxyvon Plus which contains Tramadol Whereas the commercial quantity of the same in the notification No. 1762 (E) Dated 26th of April 2018 appended to the NDPS Act at S. No. 238 ZH is 250 gms. Hence the rigor of Section 37 NDPS Act is not applicable, but the bail application is to be dealt within the normal fetters of Section 497 Cr. PC, which applies an embargo only in cases where the offence is punishable with imprisonment for death or life. Whereas the case is hand is punishable under Section 20 (ii) of NDPS Act with a minimum of one year and may extend to a maximum of 10 years.
(ii) Because, the Court granted bail in a case titled State v. Dawood Ashraf Dar, case bearing FIR No. 184/2018 under Section 8/22 NDPS Act, where the quantity of the contraband seized was more than what has been seized in this case. 56 capsules were seized from the applicant and a total of 152 capsules in the case, whereas 48 capsules have been seized from the applicant and a total of 102 capsules in the case.
(iii) Because, the investigation of the case is complete and only FSL report is pending. Hence the question of hampering or tampering with the investigation of the case does not arise.
(iv) Because, the applicants are behind the bars since January, i.e. for almost two months, for contravention in relation to intermediate quantity which was never the intention of the legislature, but the very object of the amendment to the NDPS Act of 2001 is as follows:BA No.134/2018 Page 2 of 10
Statement of Object & Reasons:
Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years rigorous imprisonment which may extend to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial, it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalization of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences. Hence the very object of the NDPS Act is to punish and deal with Drug traffickers harshly and have a lenient approach with others.
(v) Because, the procedure which the mandate of law prescribes for the NDPS cases has been grossly violated, and has suffered from material malpractice in the name of investigation of the case at the hands of the Incharge Naka party as well as the Investigation officer.
Be it the drawal of samples or the handling of the contraband or the packing of the contraband and many others. The police cannot discard its bounden duty to follow the procedure established by law for the consequences which flow from mere accusation are far too serious, by showing the interception as chance interception which in turn vitiates the whole trial not to talk of bail.
(vi) Because in Best Bakery Case AIR 2004 SC 3114 Para 33 reads as:
"Right from the inception of the judicial system, it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offense". But where the innocence of the accused is established the individual interest is to prevail and the individual interest in itself takes the colour of social interest and justice.
(vii) Because, the parameters of granting or refusal of the bail are altogether very different and are not only limited to the heinousness of an offence, but are also the chances of absconding and tampering with evidence as has been held by the Hon'ble Supreme Court in the case titled Susanta Ghosh v. State of West Bengal, 2012(1) Crimes 326 (SC) and the accused was set at liberty. In another case decided by the Hon'ble High Court of Delhi titled Aman Gaur v. State, 2012 (2) Crimes 147 (Del), were it was held that bail is not to be denied by way of punishment, incarceration causes deprivation of legal defence as a person who is at liberty can do that in a much better manner. Yet again the Hon'ble Apex Court in Sanjay Chanda v. CBI AIR, 2012 SC 830, held that object of bail generally is BA No.134/2018 Page 3 of 10 to secure the presence of his person during trial, the object of bail is neither punitive not preventive. Again the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others, ARI 2011 SC 312, by the principles of enlarging or keeping the accused in custody were discussed in detail and the parameters mostly titled to favour of the liberty of individual. The authority also discusses the rate of conviction being below/less than 10% then why not the police should be slow in arresting the accused. In yet again another authority of the Hon'ble High Court of Jammu and Kashmir titled Gh.
Hassan Lone v. Shamin Ah. Reshi and Another, 2012 SLJ (4) 1258, it was held that the grant or refusal of bail can neither be taken as acquittal nor conviction but a pure arrangement during trial. Curtailment of liberty can be an avoidable in certain cases whereas curtailment of the liberty at certain places shall amount to punishment before conviction.
(viii) Because, as per the Apex Court, the rate of conviction is less than 10% then why not the police should be slow in arresting the accused. It has also been held that the power of arrest is the most violated and chief source of corruption in police, 60% of arrests made by police are either unnecessary or unjustified which leads to 43.2% of the expenditure in jails.
(ix) Because, the object of bail is to relieve a person from unnecessary harassment or disgrace and it is granted when the Court is otherwise convinced that there is no likelihood of misuse of the liberty granted since he would neither abscond nor take such step so as to avoid due process of law.
(x) Because, bail can be granted even where it prima facie appears that the offence has been committed. It is an established law that if there is no prima facie case there is no question of considering other circumstances. But even if a prima facie is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
(xi) Because, no doubt while granting bail a balance between individual interest and larger interest of the society is to be struck out & weighed. But in concocted cases the individual interest is to be secured against the fake & fragile curtain of societal interest.
(xii) Because, our society has not advanced to such a level of legal maturity that it would differentiate between remand and conviction and most often remand or custody with police is confused with conviction, which in turn casts a very serious social taboo and the accused is deemed convicted, when guilt is miles far from being established.
(xiii) Because, the personal liberty guaranteed under Article 21 is more precious and is to be given more weight and preference than any other right. Even the Hon'ble Apex Court has held that the fundamental rights form the bedrock of the constitution. They are inalienable and transandental in character.
(xiv) Because, to allow the bail is rule and its refusal is an exception as liberty is precious and guaranteed by the constitution which cannot be curtailed unless warranted under law and BA No.134/2018 Page 4 of 10 the circumstances of the case that too in view of the character of the evidence collected by the police during investigation which is highly of partisan and interested character.
(xv) Because, the basic object of bail is to procure the attendance of the accused during the trial in order to face the judgment and justice after the conclusion of the trial, which he is otherwise available for.
(xvi) Because, the purpose of bail is neither preventive nor punitive, but mere an arrangement during trail, the detention amounts to pre trail conviction which is against the due process of law and justice.
(xvii) Because, the present trend of the Hon'ble Apex Court and the Hon'ble High Court is bail and not jail as the principles of law is that the bail cannot be withheld as a matter of punishment.
(xviii) Because, the presumption of innocence is so sacred a principle that it cannot be washed away by any amount of guilt unless the rule of beyond reasonable doubt receives its logical conclusion as the dictum of law is that the accused is presumed to be innocent till his guilty is proved beyond any reasonable doubt.
(xix) Because, the applicant will abide by whatever condition this Court may deem proper and the applicant will not leave the jurisdiction of this Court without prior permission of this Court and further will not tamper the evidence of the case.
(xx) Because, bail does not mean the accused is set at large altogether but it means that the custody of the accused has been handed over to sureties from that of police.
(xxi) Because, the accused does not possess the golden wings to flee from the clutches of law, so his custody may be handed over to the sureties than with the police.
(xxii) Because, discretions applied by the relevant Courts for justice is, Mean Sound Discretions Guided by the law and governed by the rule, within the ambit of principles of natural justice.
4. The petitioner has annexed with the petition copy of the notification dated 26th of April, 2018, in terms of which "Tramadol" has been enlisted as a "Psychotropic" substance specified in the Schedule to the NDPS Act, as referred in the Act, copy of the report furnished before the learned trial court, the copy of the order passed by the learned Additional Sessions Judge, Sopore, in the bail application along with copy of report furnished by the investigating agency in the case of Dawood Ashraf wherein allegation was recovery of 56 Capsules of similar nature and the bail granted to the said accused.
BA No.134/2018 Page 5 of 105. In the objections, the respondents have taken following stand and submitted that the application merits rejection:
(i) That on 23.07.2018, the Station House Office, Police Station Dangiwacha received a written docket from Incharge Naka Party wherein he stated that he along with escort established naka at Watergam near Forest Range Office. During Naka one maruti van bearing registration No.JK09A-1755 coming from Watergam towards Baramulla was checked and also personal search of driver and boarding passenger was carried out. During search, 44 capsules of Spasmoproxyvon Plus under composition Dicyclomine Hydrochloride =10 mg, Tramadol Hydrochloride=50 mg, acetaminophen=325 mg were recovered from the driver of the vehicle whereas 48 capsules of Spasmoproxyvon Plus of above composition were recovered from the possession of the boarding passenger. On questioning, the driver revealed his identity as Nisar Ahmad Lone S/o Fayaz Ahmad Lone R/O Hadipora while as the boarding passenger revealed his identify as Bilal Ahmad Lone s/o Ab. Rashid Lone r/o Lorihama Rafiabad Sopore Etc. and accordingly case FIR No.98/2018 U/S 8/22 NDPS Act was registered in P/S Dangiwacha. During the course of investigation site plan of the scene of crime was prepared.
The seizure memo in respect of recovered contraband i.e. 92 capsules (44 from Nisar Ahmad Lone and 48 from Bilal Ahmad Lone) of Spasmoproxyvon Plus was also prepared and sealed in two parcels marked as exhibit 'A' and 'B'. The sealed parcels were later on presented before Executive Magistrate 1st Class, Dangiwacha for sampling and resealing purpose. The samples so taken were sent to BA No.134/2018 Page 6 of 10 FSL Srinagar for expert opinion which it yet to be received/awaited from the same.
(ii) During investigation, it was found that the allegations levelled against the accused are well founded and a prima facie case stands made out against them.
(iii) In view of the provisions contained in NDPS Act, there is no scope for grant of bail.
(iv) There is not ground available to the petitioner for seeking bail.
(v) The case is of heinous nature and in the event of enlarging the accused person on bail, same shall throw a bad message in the society that despite committing such heinous offence, the accused person is scot free.
(vi) If the accused is admitted to bail, he can repeat such activities which will be against the interests of the society.
6. The main contention of the learned counsel for the petitioner has been that rigour of Section 37 of the NDPS Act was not applicable and so the learned Additional Sessions Judge, Sopore, was not justified in rejecting the bail application without even making passing reference of the facts of the case and the law applicable. While explaining the same, learned counsel has laid emphasis for taking note of notification No.N- 11012/3/2017-NC.IIdated 26th April, 2018, in terms of which "Tramadol" is included as "Psychotropic substance" in the list of psychotropic substances specified in the Schedule to the NDPS Act. It is also his plea that the investigating agency had not been able to specify as to what was the total weight of the alleged contraband seized from the petitioner. Learned counsel has also brought on record BA No.134/2018 Page 7 of 10 a copy of the computer generated information regarding the drug in bail application No.144/2018, which shows Spasmo Proxyvon Plus capsule containing "Dicyclomine 10 Mg +Paracetamol 325 Mg + Tramadol 50 Mg). The commercial quantity, as reflected in the Schedule in connection with the said drug, being 250 mgs, there was no occasion to assume alleged contraband falling within the slab 'commercial quantity'. Further qualifying the same, it is being stated that if the contraband allegedly recovered from two accused is taken in aggregate and multiplied by 385, it would come to 35.42 gms.
7. Learned counsel for the petitioner has also substantiated his argument in the light of various judgments of this High Court , which include:
Mohammad Ashraf vs. State, 2006(2) JKJ 47;
Firdous Ahmad Gazi vs. State of J&, 2012 4 Crimes (HC) 482;
Tariq Ahmad Bhat & anr. Vs. State of J&K (BA No.104/2018 dated 13.08.2018) Firdous Ahmad Payer Vs. State of J&K (BA No.133/2018 dated 17th October, 2018)
8. It has also been stared that there is a divergence of opinion in the High Court regarding interpretation of Section 36A of NDPS Act and Section 167 of the State Cr. P. C. The Proviso, as recited in Gupta's J&K Laws, of which reference is made in the judgment of the Coordinate Bench while deciding bail application No.133/2018, is also being referred. The Bench has made reference of the error made by the Publisher by reflecting there being an amendment in the Cr. P. C enabling the investigating agencies to have investigation up to 90 days instead of 60 days in the class of cases referred therein, which was not, in fact, a reality as no such amendment had been made in the State Cr. P. C. BA No.134/2018 Page 8 of 10
9. Learned AAG, on the other hand, contended that the bail application has been rightly rejected by the learned trial court as the societal interests have been taken note of, as can be notice from the summery look of the judgment of the trial court.
10. I have given my thoughtful consideration to the material before me. It is not in dispute that the petitioner has been arrested on 23 rd July, 2018. He, as noted above, has been arrested along with one Nisar Ahmad Lone while it being alleged that they were having in possession 48 and 44 (in total 92) Capsules of Spasmoproxyvon Plus respectively. Neither in the order passed by learned Additional Sessions Judge nor in the police report it is explained as to what was the total weight of the alleged recovery and how rigour of section 37 of the NDPS Act was applicable. The learned trial court, where now case is stated to be pending, has taken note of societal interests and so bail application rejected. The stage on which the case had been at that time has also been a factor for rejection of the bail application.
11. Nonetheless the fact the petitioner herein is shown to be involved in the commission of offence under Section 8/22, 29 NDPS Act, it is not the case of the respondents that the recovery allegedly made from the petitioner and the accomplice was falling within the ambit of commercial slab. In the given circumstances as can be inferred from the report and the averments of the application and the objections, the quantity so recovered can be said to be falling within the intermediate slab and the rigour of Section 37 of the Act is not attracted. The petitioner herein by now is in custody for more than six months. It is not the plea of the respondents that he, in past, was involved in any activity of similar nature necessitating bail application to be considered in that backdrop. The stage, of which reference is made in the order of learned BA No.134/2018 Page 9 of 10 Additional Sessions, is not of investigation necessitating further custody of the petitioner either for custodial interrogation or otherwise. The petitioner, presumably an innocent person, is entitled to prepare his defence and so in the ends of justice is required to be admitted to bail. It is already noted that rigour of Section 37 of the NDPS Act is not applicable to the case. The merit of application in the light of above facts is to be tested on the touchstone of Section 497 Cr. P. C. Accordingly, I am of the opinion that the petitioner has been able to make out a case for grant of bail and is, accordingly, admitted to bail provided he furnishes a personal bond to the tune of Rs.50,000/ (rupees fifty thousand) with a surety of like amount to the satisfaction of the trial court subject to following terms and conditions I. He shall remain present before the trial Court, as and when asked to do so;
II. He shall not leave the territorial limits of the trial court without prior permission;
III. He shall not tamper or intimidate the prosecution witnesses;
12. Disposed of accordingly.
13. A copy of this order shall be sent to the trial court for information and further action.
(Rashid Ali Dar) Judge Srinagar 14.02.2019 "Bhat Altaf, PS"
BA No.134/2018 Page 10 of 10