Jammu & Kashmir High Court
Ajaz Ahmed And Anr. vs State Of J&K; on 3 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A. No. 105/2018 & IA No. 01/2018
Date of order: 03.11.2018
Ajaz Ahmed and anr. Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Abhinav Sharma, Advocate and
Mr. Syeed Wajahat Ali, Advocate.
For respondent (s) : Mr. Sudesh Magotra, Advocate.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. Through the medium of this application, the applicants are seeking bail in case FIR No.67/2018 under Sections 8/12/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) of Police Station Thanamandi, Rajouri.
2. The facts giving rise to the filing of this application, briefly stated, are that the applicants have been arrested on 10.05.2018 in case FIR No. 67/2018 by the Police Station Thanamandi, Rajouri alleging recovery of 8 gms and 6 gms. of heroin from applicant Nos. 1 and 2 respectively. The challan in the case has been presented on 06.06.2018 and formal charges have been framed against the applicants vide order dated 22.06.2018 by the Court of Principal District & Sessions Judge, Rajouri. It is contended that the applicants have denied the charges and have claimed for the trial. The challan is pending disposal for recording of the prosecution evidence.
3. It is further contended that the applications for grant of bail filed by the applicants before the trial court have been dismissed vide order dated 09.07.2018 on the ground that the drug trafficking is a menace and the B. A. No. 105/2018 Page 1 of 5 persons involved in the same need to be dealt with iron hands. In the instant application, the applicants have taken the following grounds:
a) That the applicants have been falsely implicated at the behest of some influentials despite the fact that the allegations against them are baseless.
b) That the contraband allegedly recovered from the applicants is slightly higher than smaller quantity as provided in the notification appended to the NDPS Act and rigor as provided in the Section 37 of the NDPS Act is not applicable in the instant case.
c) That every person is presumed to be innocent unless guilt is proved beyond reasonable doubt, in case the applicants are not released on bail, the same will amount to pre-trial punishment.
d) That there are mitigating circumstances prima facie in favour of the applicants, who are behind the bars.
e) That most of the prosecution witnesses listed in the challan are police officials, as such, their tampering or hampering at the hands of the applicants is impossible.
4. On the other hand, the State has filed its objections, in which, it has been stated that the applicants have committed a very heinous offence and have been arrested on 10.05.2018, and the challan has been produced before the court of law on 06.06.2018. It is further stated that there is no change of circumstances in the present bail application and the applications for bail were dismissed by the trial court on 09.07.2018. It is further contended that the applicants have deliberately and intentionally committed very heinous offence, which are serious in nature and are not entitled to bail and in case they are granted bail, there is every apprehension of tampering with the prosecution witnesses and jumping over the bail.
5. Learned counsel for the applicants submitted that the applicants have been falsely implicated in FIR No. 67/2018 of Police Station Thanamandi under B. A. No. 105/2018 Page 2 of 5 Sections 8/22/60 NDPS Act. It is submitted that as per the prosecution story the applicants were found in possession of psychotropic substances and were booked under Sections 08/22/60 of NDPS Act. The applicants are in judicial custody since their arrest on 10.05.2018. It is also submitted that the bail applications moved by the applicants before the trial court came to be dismissed on 09.07.2018 and that the trial court has not appreciated the evidence in its correct prospective.
6. On the other hand, learned counsel for the respondent-State has supported the order passed by the trial court and opposed the prayer for grant of bail.
7. I have considered the submissions of learned counsel for the applicants as well as learned Government Advocate representing the State.
8. Section 37 of the NDPS Act, reads as under:-
―[37. Offences to be cognizable and non-bailable;- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)-
(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 subsection (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,].‖
9. From the perusal of this Section, it is manifest clear 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, B. A. No. 105/2018 Page 3 of 5 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 No.1 & 2 have been found in possession of 8 gms and 6 gms. of Heroin respectively. The accused have, thus, been found in possession of quantity, which is in between commercial and small quantity. In this way rigour of section 37 of Act is not applicable.
9. In 2008 (3) JKJ 410 (HC), in case, titled, Tariq Ahmad Dar and another Vs. State and others, the High Court of J&K, has held as under:
―Criminal Procedure Code, Svt. 1989, 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.‖
10. 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 B. A. No. 105/2018 Page 4 of 5 section 497 Cr.P.C. a person who has committed offence punishable with death or life imprisonment cannot be granted bail, if there appears that there are reasonable ground for believing that accused applicant has committed such type of offence. In the present case accused-applicants have 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, rigour of Section 497 Cr.P.C is also not applicable.
11. Applicants are in custody since 10.05.2018 and trial is proceeding. They cannot be kept in custody as a matter of punishment. Further, they are 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 been able to show any material warranting denial of such concession to the applicants.
12. The applicants are, thus, admitted to bail, subject to furnishing of their surety and personal bonds in the sum of Rs.50,000/- each to the satisfaction of Court concerned on the following terms and conditions:-
a) That they shall actively participate in the trial.
b) That they shall not leave territorial jurisdiction of the State without taking prior permission of trial Court and shall refrain from intimidating prosecution witnesses.
13. Bail Application is disposed of accordingly.
( Sanjay Kumar Gupta) Judge Jammu 03.11.2018 Karam Chand B. A. No. 105/2018 Page 5 of 5