Mohd. Altaf Lone vs Ut Of J&K on 5 April, 2022

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Jammu & Kashmir High Court

Mohd. Altaf Lone vs Ut Of J&K on 5 April, 2022

1) Through the medium of the instant petition, the petitioner seeks bail in crime case No. 59/2020 for offences under Sections 08/15/29/60 of (NDPS) Narcotic Drugs and Psychotropic Substances Act, (for short, 'NDPS Act'), arising out of FIR No. 570/2019 dated 02.12.2019.

2) According to the prosecution case on 02.12.2019 Police Station, Udhampur received an information from reliable sources that one truck bearing registration No. JK03D-7707 loaded with apple boxes has beneath the said boxes concealed Poppy straw like 2 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020 substances being transported from Srinagar to Punjab and that upon receipt of the said information FIR No. 570/2019 for offences under Sections 8/15 NDPS Act came to be registered and that the investigating officer accompanied with Executive Magistrate, Udhampur, intercepted the said truck at Jakhani Chowk, Udhampur and recovered 15 plastic bags carrying 365 kgs of Poppy straw which were hidden under the apple boxes and upon inquiry, the driver disclosed his name as Sunil Kumar S/o Dharam Paul R/o Gandhi Cam Jalandhar (Punjab).

 During the course of the investigation, according to the prosecution version, samples were drawn from each bag containing Poppy straw and sent to FSL and that the driver of the vehicle having been implicated as an accused made a disclosure statement in presence of the Executive Magistrate that 649 boxes containing apples were loaded from Kaka Transport Sopore, whereafter, the owner of the truck took the same to his native village, namely, Pazalpora Bijbehara and loaded Poppy straw in the truck and told the accused-driver to transport the same to Punjab for sale and for doing so, promised to pay an amount of Rs. 30,000/- to the accused- driver.

 According to the prosecution case, the FSL report revealed the presence of morphine in the contraband and that the accused 3 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020 persons had hatched a criminal conspiracy for illegally transporting the contraband.

 Upon completion of the investigation, chargesheet under Sections 8/15/29/60 NDPS Act is stated to have been filed against the accused-driver and the owner of the vehicle- petitioner herein before the court of Additional Sessions Judge, Udhampur, (Special Judge Under NDPS Act), (for short, 'trial court').

3) The accused-petitioner herein is in custody and facing trial before the trial court in respect of charges under Sections 8/15 (C) NDPS Act.

4) The instant petition is a second attempt being made by the petitioner herein for enlargement on bail as the petitioner had earlier approached the trial court for grant of bail which stands rejected vide order dated 04.07.2020.

5) The petitioner herein while maintaining the instant petition seeks bail, inter-alia, on the ground that the petitioner has not committed any offence and has been falsely implicated in the case and that the prosecution has miserably failed to connect the petitioners with the commission of alleged offences and that the alleged confession of statement made by the accused-driver cannot be read against the petitioner-herein and that the said statement had not 4 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020 been part of the documents annexed with the challan and that the earlier bail application filed before the trial court came to be dismissed by the trial court without discussing facts and cogent reasons and that the investigation of the case is over and final report is submitted before the court and, as such, the detention of the petitioner now is unjustified.

Heard learned counsel for the parties and perused the record.

6) Learned senior counsel for the petitioner while making his submissions reiterated the contentions raised in the petition and would insist for enlargement of the petitioner on bail, whereas counsel for the respondent while controverting the contentions raised by the counsel for the petitioner would seek dismissal of the petition, inter-alia, on the grounds that the petitioner is involved in the commission of heinous offences and in law stringent parameters for grant of bail under NDPS Act, have been prescribed including the principle of law under the Act.

7) The allegations against the petitioner is that being owner of the truck (supra), the petitioner got loaded contraband/Poppy straw at his native village underneath the apple fruit boxes for the transportation of the same to Punjab while hatching a conspiracy with the accused-driver promising him payment of Rs. 30,000/-. There is no dispute to the fact that the quantity of the contraband allegedly 5 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020 recovered from the truck of the petitioner herein falls under commercial quantity, therefore, provisions contained in Section 37 of the NDPS Act is attracted in the case. A reference to Section 37 herein thus, becomes imperative which is extracted and reproduced hereunder :-

"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 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."

From bare perusal of the provision (supra) it is manifest that the cases in which the commercial quantity of contraband is alleged to have been recovered from the accused, bail can be granted only if there are reasonable grounds to believe that the accused is not guilty of such offences and that he is not likely to commit 6 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020 any offence while on bail. The said mandate of the provision has to be followed and adhered to at the time of consideration of a bail application of the accused. The rider of Section 37 to be applied on grant of bail is in addition to the limitations/conditions provided under the Code of Criminal Procedure.

8) Here it would be advantageous to refer to the judgment of the Apex Court titled as, "Union of India vs Ram Samujh and another, 1999 (9) SCC 429", being relevant herein, wherein the Apex Court has laid down as follows :-

"It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:

24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious

7 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020 effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

A further reference to the judgment of the Apex Court titled as, "State of Kerala Vs. Rajesh and others, 2020 (12) SCC 122" would also be germane herein wherein following has been laid down :-

What emerges from above decision of the Apex Court is that unless two conditions mandated under Section 37 of the Act are satisfied an accused who is involved in offence relating to a commercial quantity of contraband cannot be enlarged on bail. The first condition being that the prosecution must be given an opportunity to oppose the bail application and the second that the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offences.

9) Before proceeding further in the matter it needs to be kept in kind that the Court is not required to appreciate and scrutinize the evidence in detail and a meticulous and critical analysis of the matter is not permissible in law while considering a bail application.

8 CRM(M) No. 435/2021 c/w Bail App. No. 145/2020

10) Admittedly, there is material collected by the prosecution connecting the petitioner with the commission of alleged offences in the form of the confessional statement made by the accused-driver claimed to have been recorded in presence of the Executive Magistrate. Whether such statement can be read against him or not can neither be looked into while deciding the instant bail application nor also whether the petitioner is an innocent or has not committed the alleged offences, in that, same can neither be deliberated upon nor any finding can be recorded thereto in this regard at this stage, moreso, when the trial court has framed charges against the petitioner on 26.06.2021 for the commission of the alleged offences and the trial before the court is at its infancy stage.

11) Having regard to what has been observed, considered and analyzed herein above, the instant petition is liable to be rejected and is accordingly, dismissed along with all connected applications.

12) The connected petition bearing CRM(M) No. 435/2021 along with connected applications shall stand detached and be listed on 18.04.2022.

(JAVED IQBAL WANI) JUDGE SRINAGAR 05.04.2022 SUNIL-I Whether the order is speaking ? : Yes Whether the order is reportable ? : Yes

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Jammu & Kashmir High Court