Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of J&K vs Irfan Ahmad Gazi on 17 June, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail Appl. 53/2022
Union Territory of J&K
...Petitioner(s)
Through: Mr. Sheikh Feroz,Dy.AG vice
Mr. Illyas Nazir Laway, GA.
Vs.
Irfan Ahmad Gazi
...Respondent(s)
Through: Mr. Hussain Rashid, Advocate.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner, through the medium of this application, seeks cancellation of bail granted to the respondent herein vide impugned order dated 18.02.2022 passed by learned Additional Sessions Judge Sopore in the case titled "Irfan Ahmad Gazi Vs. UT of J&K"
arising out of an FIR No.276/2021 for the commission of offence punishable under Sections 8/21/22/29 of NDPS Act registered at Police Station Sopore.
2. The impugned order has been assailed mainly on the ground that the commercial quantity of drugs including brown-sugar had been recovered from the possession of the respondent on 16.11.2021 at Shalpora Sopore, and that the respondent was a habitual offender already involved in a case of drugs registered vide FIR No.74/2012 regarding which he has been facing trial before the court below. That the respondent, in view of the application of rigor of Section 37(I)(b) of NDPS Act, there being no compelling reason to grant interim bail Page |2 to the respondent was not entitled to grant of bail, on the pretext of some pregnancy related complicacy of his wife. That the case, in which the respondent had been granted interim bail, was still under investigation. It was alleged that the court below had granted interim bail in favour of the respondent without there being any cogent reasons therefor, and it is prayed that the impugned order, whereby the interim bail had been granted to the respondent, be set aside to meet the ends of equity, law and justice.
3. Learned counsel for the respondent, pursuant to notice, appeared in the court on 02.06.2022 and was directed to file reply before next date of hearing, however, no reply has been filed and the learned counsel for the respondent today submitted that instead of filing reply he would prefer to argue the matter.
4. Heard and considered.
5. Learned counsel appearing for the petitioner-Union Territory, argued that the respondent, who is a habitual offender involved in the illicit trafficking of drugs, had been granted interim bail by the court below on the pretext of some pregnancy related complications of his wife, though the respondent was not entitled to be granted bail in view of the commercial quantity of drugs having recovered from his possession in view of the application of rigour of Section 37 of NDPS Act. He further submitted that the case was still under investigation and grant of bail, even if interim in favour of the respondent, was detrimental to the fair investigation of the case. It was submitted that the court below had committed grave illegality while granting interim bail to the respondent. He further argued that the court below vide order dated 18.02.2022 had granted interim bail Page |3 to the respondent for a period of three months and the same was being extended from time to time without asking the respondent to surrender to the judicial custody. It was finally prayed that the impugned order be set aside in the interests of justice.
6. Learned counsel for the respondent, ex-adverso, argued that the respondent had been granted interim bail not on merits but bail was granted to him in view of the reason that the respondent's wife, who had been carrying pregnancy of 29 weeks had developed some serious complications including "Retro Placental Hemotoma" and that there is no male person except the respondent to look after her in her advanced stage of pregnancy, as such, the court below had not committed any illegality while granting interim bail. The interim bail, in view of the judicial pronouncements, can be granted for the limited period in view of the emergent eventualities. He argued that to protect the pregnancy of the respondent's wife was all the more important and in view of that, the court below had rightly granted bail in favour of the respondent. He has finally submitted that the application for cancellation of bail may be rejected and the impugned order be upheld.
7. The factual background of the case is that on 16.11.2021, the respondent along-with one person namely Aaqib Nissar Gojree was arrested from whom commercial quantity of Codine Phosphate Syrup and brown-sugar had been recovered. From the respondent alone, besides one digital weighing machine, brown sugar and 34 bottles of Codine Phosphate Syrup were recovered, which falls under the category of commercial quantity as such, rigour of Section 37 of NDPS Act was applicable in the case. In this connection case Page |4 was registered at Police Station Sopore vide FIR No.276/2021 for the commission of offence punishable under Sections 8/21/22/29 of NDPS Act. The case was still under the investigation and in the meanwhile, the respondent herein moved an application before the court below for grant of interim bail on the ground that his wife Tanveera Begum, who was in family-way, carrying the pregnancy of 29 weeks, was suffering from some serious complications including "Retro Placental Hematoma" and there being no other male person except him to look after her in her advanced stage of pregnancy. This plea was supported by the certificate issued by the Medical Officer of Sub District Hospital Sopore, besides the certificates issued by the Municipal Council Sopore and Auqaf Committee of local Masjid, certifying that there was no other male person in the respondent's family to look after his wife.
8. The prosecution had opposed the grant of bail on the ground that the respondent herein was involved in the commission of serious offence, whose edifice was laid on the recovery of huge quantity of banned contraband which falls under the commercial quantity; that the respondent was not entitled to grant of bail in view of the rigour of Section 37 of NDPS Act, which provides that in a case of commercial quantity, bail can be granted only on giving right of being opposed and recording the satisfaction by the court that the accused was prima facie found not to be involved in the case and that no such satisfaction at the stage when the case was under
investigation can be drawn by the court below.
9. The court below drawing the distinction between the regular bail and the interim bail, decided the application with the observation that Page |5 there was no blanket ban in admitting the accused to interim bail even in the case involving in commercial quantity, and that the interim bail can be granted to the accused on medical, humanitarian and compassionate grounds. The health condition of the wife of the respondent herein weighed with the court below and the bail was initially granted for the period of three months vide impugned order.
10. Since the respondent herein had chosen not to file any reply/objections to this application, the contentions raised in the application have, thus, remained un-rebutted.
11. There is no denial that from the possession of the respondent, commercial quantity of drugs/contraband had been recovered and that the case was under investigation awaiting laying of the charge- sheet; and that the respondent was also facing trial as an accused in the case titled "UT of J&K Vs. Irfan Ahmad Gazi" arising out of FIR No.74/2012 registered at Police Station Sopore for the commission of offence punishable under Sections 8/21/22/29 of NDPS Act, in the court below itself.
12. From the perusal of Special provision under Section 37 of NDPS Act, it becomes clear that a person accused of offence involving commercial quantity of contraband cannot be released on bail unless court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. Sub Section-2 of the aforesaid provision makes it clear that the aforesaid limitations for grant of bail are in addition to limitations under Code of Criminal Procedure. This provision, however, does not confer any power to the Special Court or the High Court, to grant bail but had only put limitations to the Page |6 power of the Court with regard to its jurisdiction to grant bail. This bar or rigour comes into play only when the bail of a person accused in commercial quantity of contraband is being considered on merits and the limitations contained therein would not come into play when the bail is to be granted on humanitarian grounds, like medical exigencies, thus, the provisions contained under Section 37 of NDPS Act do not act as a blanket ban on the power of the court to grant interim bail.
13. High Court of Delhi in a case titled "Athar Pervez Vs. State (CRL. REF. 1/2015)," while considering the bail/interim bail answered the reference. The relevant Para-20 of the said judgment is reproduced as under:-
"20.Having considered the case law on the subject, we are inclined to answer the reference in the following manner:
[1] The trial or the appellate Courts after conviction are entitled to grant "interim" bail to the accused/ convict when exceptional and extra-ordinary circumstances would justify this indulgence. The power is to be sparingly used, when intolerable grief and suffering in the given facts may justify temporary release.
[2] While rejecting or accepting an application for grant of "interim" bail, the trial / appellate Courts will keep in mind the strict provisions of Section 37 /32A of the NDPS Act and only when there are compelling reasons which would justify and require the grant of "interim" bail, should the application be allowed. The Court must take into account whether or not the accused/convict is likely to commit or indulge in similar violations.
[3] While examining the question of grant of "interim" bail, the Court would consider whether sending accused / convict in police custody would be suffice and meets the ends of justice, keeping in view Page |7 the nature of the offence with which the accused is charged or/and the past conduct of the accused. [4] Where "interim" bail should be given, it would be granted for minimal time deservedly necessary and can be subject to certain conditions. Interim bail is interim or for a short duration."
14. In view of the aforesaid discussions over the legal aspect of grant of interim bail even in a case of commercial quantity under NDPS Act, it is clear that there is no bar to grant bail in some emergent situations including medical emergency involving the accused himself or his spouse or any immediate member of his family.
15. In the case in hand, the interim bail was granted for the period of three months to the respondent to look after his wife who was facing health issue during her advanced pregnancy as had been certified by the doctor of the local hospital, therefore, the court below, though was having jurisdiction to grant interim bail even in the case of commercial quantity punishable under NDPS Act, wherein rigour of Section 37 was also applicable, however, such exercise should not be for the longer period.
16. In the considered opinion of this Court, the interim bail has to be granted for a minimal time period, deservedly necessary and it would have been in the interest of justice had the respondent been granted bail for a shorter duration instead of three months at a stretch.
17. The respondent was the habitual offender as he was already facing the charge of having in his possession narcotic drugs and had repeated the offence. It is not that there was no other person in the family of the respondent to look after his wife, as his parents and Page |8 that of his wife's parents were stated to be alive, besides other relations, siblings of both.
18. The wife of the respondent is also stated to be official of the Health Department and there cannot be the possibility of any bad eventuality even if the respondent is not around his wife during her pregnancy. The court below seems to have exceeded its jurisdiction to grant interim bail for a longer period of three months and also extending the same thereafter as has been admitted by the both sides.
19. Having regard to the aforesaid discussions and afore-stated reasons, it is held that the court below had exceeded its jurisdiction to grant interim bail for the period of three months and extending the same thereafter. Though, the interim bail can be granted to the accused irrespective of offence committed by him to attend any emergent exigency involving him or his immediate family. The court below had, thus, abused the power to grant interim bail to the accused and it appears that the interim bail had been devised instead of regular bail that too during the investigation of the case, and seeking bail on merits to which he may not be entitled to in view of the statutory rigour.
20. As a sequel, to what has been discussed hereinabove, the impugned order is bad in law and is not sustainable. Same is ordered to be set aside. Respondent herein is directed to surrender before the court below to be remanded to the judicial custody on 01.07.2022.
21. Disposed of, as indicated above.
( M. A. CHOWDHARY ) JUDGE Srinagar 17.06.2022 Muzammil. Q