Abdul Majeed Bhat @APPELLANT@Hash State of J&K

Learned 1stAdditional Sessions Judge, Baramulla, has declined to grant bail in favour of the petitioner herein in terms of order dated 29.12.2017,

passed in applications, three in number (filed by various accused), referred in the petition as Annexure-PA. The petitioner, in view of the same, has

filed the instant bail application wherein he has projected his case for being entitled to bail on the grounds, precisely, extracted below:

(A) That the continued detention of the petitioner is not legally warranted and he deserves to be released on bail;

(B) That by continued detention, the petitioner is denied the right to prove his innocence and also denying his right to arrange for proper and effective

defense in the case;

(C) That the petitioner is in languishing in District Jail, Baramulla, for last 07 months;

(D) That the petitioner is seriously ill and in this regard a report has been submitted by the Medical Officer of the Jail which reveals that the person of

the petitioner is suffering from heart ailment;

(E) That the case in which the petitioner has been implicated is totally false;

(F) That the rigor of Section 37 of the NDPS Act is not applicable;

(G) That one of the accused, namely, Mohammad Ashraf Yatoo, has been released by this Court, therefore, petitioner is entitled to same treatment.

In the reply/objections filed on behalf of the respondent, prayer has been made for dismissal of the application by putting forth that there is credible

and cogent evidence available regarding involvement of the petitioner in the commission of crime; the petitioner is involved in heinous crime which is

rarest of rare one and since the petitioner is still under trial, in the event of bail in favour of the petitioner, there is every possibility that the petitioner

will influence the witnesses and that there are reasonable grounds for believing that the accusation against the accused is prima facie true.

Heard learned counsel for the parties. Learned counsel for the petitioner has taken reliance on various judgments including Amar Singh Ramjibhai

Barot v. State of Gujarat, ((2005) 7 SCC 550), Sanjay Chandra v. Central Bureau of Investigation (AIR 2012 SC 830) and Vinod son of Satyanarayan

Lohiya v. The State of Maharashtra (1996(1) Bom. CR 483), and contended that the petitioner is entitled to bail. It is being emphatically contended

that the mischief of Section 37 of the NDPS Act being not applicable to the case, it would have been in the ends of justice to admit the petitioner to

bail. It is also his plea that the learned 1st Additional Sessions Judge having observed in the order, in terms of which his bail application was rejected,

that the quantity involved was intermediate and not commercial, the petitioner could not be permitted to be incarcerated in jail. The petitioner,

admittedly, having been arrested on 08.10.2017 and continues to languish in the jail without any progress in trial. Furthermore, according to him, one of

the persons, referred in the First Information Report, has been admitted to bail by a Coordinate Bench of this Court in terms of order passed on 7th of

April, 2018, the petitioner, on the application of principle of parity, is to be granted same treatment. According to learned counsel for the petitioner,

investigating agency though having projected that the accused referred in the First Information Report were arrested at the venue but the recoveries

are attributed individually. Thus the common intention or conspiracy cannot be ascribed to the petitioner so as to bracket the substance alleged to have

been recovered from each of them a single one.

On the other hand, learned counsel for the respondent contended that the learned 1st Additional Sessions Judge has passed a proper order. The

Court cannot shut eyes towards public interest and individual interest has to give way to it in a case of present nature. It is also his contention that

though the recoveries have been made on personal search of the accused including the petitioner, the petitioner cannot be stated at this to be in

possession of only 75 grams of brown sugar (an intermediate quantity).

Learned counsel for the petitioner, in rebuttal, contended that the pleas raised on behalf of the respondent State are without any merit. According to

him, there is no allegation on the part of investigating agency that the petitioner had hatched any criminal conspiracy. The petitioner deserves to be

given a humane treatment and not allowed to be incarcerated in jail is also canvassed. Reference has also been of various annexures, referred in the

petition.

Considered the rival submissions and have gone through the record available before me. The Xerox copy of the report of the police produced

before the Court has also been gone through.

It appears that a case has been registered by Police Station, Baramulla, on 08.10.2017 wherein summary of the incident is quoted as under:

“On 08.10.2017, a police patrol party of Police Station, Baramulla, found some persons moving around in suspicious circumstances. They were

signaled to stop but they tried to give them a slip. However, these persons were apprehended by the police party and during the search of their person

some contraband was recovered from their possession. They could not account for it. They disclosed their identities as (1) Reyaz Ahmad Khan S/o

Raj Mohammad r/o Kalgi Uri, (2) Mohammad Ashraf Itoo S/o Ghulam Mohammad Itoo R/o Namblabal Pampore, (3) Abdul Majeed Bhat S/o Abdul

Ahad Bhat R/o Tathamulla Boniyar, (4) Abdul Nazir Masi S/o Abdul Kareem R/o Gowhallan Uri. An FIR bearing No.181/2017 was registered

against them for the commission of offences U/Ss 8/21/29 NDPS Act at Police Station, Baramulla, with which the investigation ensued. During

investigation the samples of the contraband seized from their possession were sent to J&K Forensic Science Laboratory, Srinagar, for examination

and analysis. The report received from the FSL confirmed that “DIACETYL MORPHINE (BROWN SUGAR) WAS DETECTED IN THE

EXHIBIT NO’S H-251/17 TO H-254/17â€. The statements of some of the witnesses conversant with the facts of the case were recorded U/s

161 Cr. PC and the statements of the material witnesses were recorded in terms of Sec.164-A Cr. P. C. A charge-sheet for the commission of the

offences U/Ss 8/21/29 NDPS Act was laid against the accused persons before the competent court and they have been put to trial.â€​

Copies of the orders passed by the Court during trial i.e. after presentation of the challan are not available at this moment. Xerox copies of recovery

memo which is marked as EXPW-2 dated 22.02.2018 on record recites a white coloured envelope having been recovered from the person of the

petitioner herein. The particulars of the recovery made from other accused, namely, Mohammad Ashraf, Abdul Nazir and Reyaz Ahmad Khan, are

also referred therein. The memo prepared after weighing the recovered substance shows the weight of the envelope attributed to the petitioner herein

as 75 grams.

The learned 1st Additional Sessions Judge, in the order dated 29.12.2017, has referred to the judgments of the Hon’ble Apex Court rendered in

the case of “Siddaharam Satlingapa†and “Prasanta Kumar Sarka v. Ashis Chatterjee†and framed the opinion that the liberty has to be

weighed in the scale of collective cry and desire and the social concern has to be kept in view. Resultantly admission of the accused including

petitioner herein was not found warranted, so the bail applications rejected.

A Coordinate Bench of this Court has, on an application filed by the coaccused Mohammad Ashraf Yatoo, taken note of the fact that the

contraband recovered from the possession of accused does not fall within the parameters and the scales of commercial quantity but is an

intermediatory one and, therefore, application had to be considered under the provisions of Section 497 Cr. P. C. It is also held that the case of the

petitioner therein does not fall within the purview of Section 37 NDPS Act

As has been rightly observed by the learned 1st Additional Sessions Judge, the quantity attributed to have been recovered from the petitioner

herein does not fall within commercial slab but is an intermediate one, rigor of Section 37 of the NDPS Act would not be attracted.

The petitioner herein appears to be facing trial at Baramulla. One of the accused, as referred hereinabove, has been admitted to bail by a

Coordinate Bench and on the application of principle of parity, the petitioner herein is also held to be entitled for being admitted to bail. It also requires

to be underlined herein that nothing has been brought on record by the respondent State from which it could be deduced that the petitioner herein is

involved in any other case other than referred herein. Furthermore, the trial has commenced after the arrest of the petitioner herein and the

respondent State, thus, had a reasonable opportunity not only of substantiating its case before the trial court but also to sound that no amount of bail

would secure presence of the accused at trial. Course of justice cannot be said thus would be thwarted if the accused is released on bail. Accordingly,

application is allowed and the petitioner is ordered to be set free subject to the condition that he furnishes bond in an amount of Rs.1,00,000/ (rupees

one lac) with two sureties of the like amount to the satisfaction of the trial Court on the following terms and conditions:

(1) That he shall not leave the territorial limits of the trial court without prior permission;

(2) That he shall not tamper or intimidate the prosecution witnesses;

(3) That he will remain present before the trial court on each and every date of hearing;

A parallel personal bond be also elicited from the petitioner regarding compliance of the conditions incorporated hereinabove.

Disposed of accordingly.

A copy of this order shall be sent to the trial court for information and further action.