Abbas Ali vs Union Territory Of J&K And Another

The present application for grant of bail has been filed by the petitioner after the application for grant of bail was dismissed by the court of learned

1st Additional Sessions Judge Jammu (hereinafter referred to as trial court) vide order dated 28.08.2020. The petitioner is seeking bail on the ground

that he is facing trial in challan, titled, State vs Imtiyaz Ahmed and another pending before the court of learned 1st Additional Sessions Judge Jammu

and all the witnesses except the Investigating Officer and then SHO have been examined and none of the witnesses has deposed that the petitioner

was having knowledge of the contraband and had conspiracy with the main accused who allegedly was driving the truck on the day of occurrence. It

is further stated that from the statement of PWs 1 to 5 it is evident that Investigating Officer visited the spot at 7:30 PM for the purpose of

investigation but the fact remains that the FIR was registered at 21:29 hours. It is further stated that ASI Mohammad Iqbal has prepared a seizure

memo of the contraband and simultaneously prepared a docket for the purpose of registration of FIR and at that point of time FIR was not registered

but from a bare perusal of the seizure memo, it is evident that the FIR number has been mentioned in the seizure memo by ASI Mohammad Iqbal. It is

stated that the copy of Malkhana Register has not been placed on record, that clearly shows that false and frivolous case has been registered against

the petitioner and also that the sample was resealed on 07.12.2018 and as per the statement of FSL expert, the samples were received on 20.02.2018.

The petitioner has placed on record the copy of challan as well as the statement of the prosecution witnesses recorded during the course of trial.

The respondents have filed objections/status report, in which they have prayed for the rejection of the bail application.

Before appreciating the contentions raised by the petitioner, it would be appropriate to have the brief resume of the allegations leveled against the

petitioner. A perusal of the challan reveals that the petitioner has been arrested in FIR bearing No. 37/2018 registered with Police Station, Bahu Fort,

Jammu and the said FIR was registered pursuant to the docket sent by ASI Mohammad Iqbal. It is alleged that on 03.02.2018, while the Police party

headed by ASI Mohammad Iqbal was performing Naka duty at Narwal for the purpose of checking vehicles, one truck bearing registration number

JK03C-2645 that was being driven by the accused namely, Imtiyaz Ahmed was asked to stop and during the course of checking from the toolbox of

the said truck, Poppy Straw weighing 160 Kg. was recovered and the petitioner was also sitting in the said truck. After the conclusion of the

investigation, the challan for commission of offences under sections 8, 15 and 29 of the NDPS Act was filed against the petitioner and the co-accused

Imtiyaz Ahmed. The petitioner was arrayed as an accused by invoking the provision of section 29 of the NDPS act.

Learned counsel appearing for the petitioner has vehemently argued that no recovery has been effected from the petitioner and the petitioner

unnecessarily has been arrayed as an accused. He has further argued that the prosecution has miserably failed to bring on record any evidence

regarding the conspiracy between both the accused. He has reiterated the grounds taken in the bail application.

Per contra, Mr. Aseem Sawhney, Ld. AAG has vehemently argued that quantity of contraband recovered from both the accused falls within the

category of commercial quantity and the rigors of section 37 of the NDPS Act shall apply in the instant case. He has further argued that evidence

cannot be appreciated while considering the application for grant of bail.

Heard learned counsel for the parties and perused the record meticulously.

The perusal of the record reveals that the quantity of the contraband recovered from the truck is 160 Kg. of Poppy Straw and the rigors of section

37 of the NDPS Act shall apply in the instant case. The petitioner has been charged for the commission of offences punishable under sections 8, 15

and 29 of the NDPS Act. It is further evident that all the prosecution witnesses except the Investigating Officer and then SHO, have been examined

by the prosecution. The contentions raised by the petitioner that seizure memo bears the number of FIR, non-placing on record the copy of Malkhana

Register and that the prosecution witness Nos. 1 to 5 have deposed that the Investigating Officer came on spot at 7:00-7:30 PM, whereas the FIR

was registered at 21:29 hours, meaning thereby that investigation commenced prior to registration of FIR, are the matters of appreciation of evidence

and cannot be considered while deciding the application for grant of bail. Law is well settled that evidence led by the prosecution can no doubt be

looked into while deciding the application for grant of bail but the evidence cannot be appreciated while considering the bail application. At this stage,

this Court cannot meticulously examine the evidence led by the prosecution particularly when all the material witnesses except the Investigating

Officer have been examined by the prosecution. Reliance is placed upon the decision of the Apex Court in case titled Vaman Narain Ghiya v. State of

Rajasthan, reported in (2009) 2 SCC 281 and the relevant para is reproduced as under:

“11. While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This

requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is

only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh v. Prabhakar Rajaram Kharote

[(1980) 2 SCC 559 : 1980 SCC (Cri) 508 : AIR 1980 SC 785] .) Where the offence is of serious nature the question of grant of bail has to be decided

keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (See State of

Maharashtra v. Anand Chintaman Dighe [(1990) 1 SCC 397 : 1990 SCC (Cri) 142 : AIR 1990 SC 625] and State v. Surendranath Mohanty [(1990) 3

OCR 462] .)

This Court has deliberately avoided the detailed discussion of the evidence brought on record by the prosecution, lest it shall prejudice either of the

parties at the time of the final appreciation of the evidence by the trial court.

In view of what has been discussed above, no case for grant of bail has been made out by the petitioner and as such, the bail application is

dismissed. The trial court shall make all possible endeavours to conclude the trial expeditiously.