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Judgment
Sanjay Dhar, J
1) The petitioner has invoked the jurisdiction of this Court under Section 439 of the Cr. P. C seeking bail in his favour in a case arising out of FIR No.02/2021 264/2020 for offences under Section 8/20 of the Narcotic Drugs and Psychotropic Substances, Act, (hereinafter for short referred to as ‘the NDPS Act’) and Section 207 of Motor Vehicles Act registered with Police Station, Safapora, Ganderbal. After investigation of the FIR, charge sheet stands already laid before the Court of Principal Sessions Judge, Ganderbal. Pursuant to framing of charges against the petitioner, trial of the case is in progress.
2) As per case of the prosecution, on 25.01.2021, while the officials of Police Station, Safapora, were on Naka duty at Nawabadi Mohalla, Safapora, they intercepted an Auto Load Carrier bearing No.JK15-3597 that was proceeding from Asham Sonawari towards Safapora. The Auto Load Carrier was being driven by the petitioner herein. Upon search of the Auto Load Carrier, one red coloured bag was recovered which contained charas like substance wrapped in maize covers. The petitioner, upon questioning, could not furnish plausible reason regarding possession of charas. Accordingly, the aforesaid FIR came to be registered and investigation was set into motion.
3) During investigation of the case, the recovered charas was seized and its sample was sealed and sent to FSL for expert opinion. The weight of the recovered charas was found to be 1 kg and 300 grams. After investigation of the case, offences under Section 8/20 of the NDPS Act were found established against the petitioner and the challan was laid before the trial court. The petitioner was charged for the offences under Section 8/20 of the NDPS Act and, it appears, that statements of as some of the prosecution witnesses have already been recorded by the trial court.
4) It appears that during trial of the case, the petitioner had approached the trial court for grant of bail, but his application has been dismissed vide order dated 02.02.2022 passed by the learned trial court.
5) The petitioner has sought bail on the grounds that investigation of the case is already complete and the trial is in progress and, as such, he cannot be denied the concession of bail; that there exist reasonable grounds for believing that the petitioner is not guilty of any offence as is discernible from the statements of the prosecution witnesses and, as such, the rigour of Section 37 of the NDPS Act is not attracted to the instant case; that the petitioner has undergone incarceration for more than one year and his further incarceration would amount to pre-trial punishment which is impermissible in law.
6) The respondents have resisted the bail application by filing objections thereto. In their objections, the respondents have contended that the petitioner has been found in possession of commercial quantity of contraband and, as such, he is not entitled to concession of bail. It has been contended that there is sufficient material on record of the trial court to connect the petitioner with the alleged crime and, as such, he is not entitled to grant of bail.
7) I have heard learned counsel for the parties and perused the material on record including the trial court record.
8) The allegation against the accused/petitioner is that commercial quantity of contraband substance was recovered from his possession. It has been contended by the petitioner that the recovered material was weighed in conjunction with maize covers and it is only on account of this, that the weight of the recovered charas went beyond the limit of intermediate quantity.
9) A perusal of the challan, particularly the memo relating to weighing of the recovered substance, prima facie, shows that the recovered substance was weighed after excluding the maize covers. Therefore, the contention of the petitioner that the weight of the maize covers was also taken into account is without any substance. Thus, the material on record clearly shows that commercial quantity of charas was recovered from the possession of the petitioner.
10) Having held that commercial quantity of charas was recovered from the possession of the petitioner, the rigour of Section 37 of the NDPS Act is attracted to the instant case with full force and unless the petitioner satisfies this Court about the existence of conditions laid down in the aforesaid provision, he cannot be enlarged on bail.
11) In order to test the merits of the contention of the petitioner that even if rigor of Section 37 of NDPS Act is attracted to his case, still then he deserves to be enlarged on bail on merits, the aforesaid provision is required to be noticed. It 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 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.”
12) From a perusal of the aforesaid provision, it is clear that in the cases in which 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 offence and that he is not likely to commit any offence while on bail.
The said mandate of the legislature is required to be followed at the time of consideration of the bail application of the accused. These limitations on grant of bail are in addition to the limitations under the Code of Criminal Procedure.
13) The Supreme Court in the case of State of Kerala Vs. Rajesh and others, 2020 (12) SCC 122, while interpreting the expression reasonable grounds appearing in Section 37 of the NDPS Act, has observed as under:-
“The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr. P. C, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.”
14) In the backdrop of the legal position, as enunciated by the Supreme Court, it is clear that unless it is shown from the material on record, which would include the statements of the prosecution witnesses recorded during the trial, that there are reasonable grounds to justify the satisfaction that the accused is not guilty of the alleged offences, the accused cannot be enlarged on bail.
15) It has been contended by learned counsel for the petitioner that there are material contradictions in the statements of prosecution witnesses on vital aspects of the case and upon consideration of their effect on the prosecution case, it can safely be concluded that there are reasonable grounds for believing that the petitioner is not involved in the alleged offence. In this regard, the petitioner has referred to the statements of PW-2, Sgct. Mohammad Rafiq Wani and PW-4, Constable Manzoor Ahmad, certified copies whereof have been placed on record.
16) Before embarking upon the analysis of the evidence lead by the prosecution in order to determine the merits of the submissions advanced by the learned counsel for the petitioner, it needs to be borne in mind that while deciding a bail application, this Court is not required to appreciate and scrutinize the evidence in detail at this stage. A meticulous and critical analysis of the evidence by the prosecution at this stage is not permissible.
17) A perusal of the statements of the prosecution witnesses, namely, PW-2, Sgct. Mohammad Rafiq Wani and PW-4, Constable Manzoor Ahmad, reveals that they have, prima facie, supported the prosecution story and it cannot be stated that they have resiled from the prosecution story. A minute analysis of the statements of these witnesses may or may not bring to the fore inconsistencies and contradictions but then at the time of considering the bail application, it is not open to this Court to go into these minute details and to analyze the evidence on record meticulously and critically. From the statements of the aforesaid prosecution witnesses and the evidence, which is yet to be led by the prosecution, it can safely be stated that this Court cannot draw a satisfaction that the accused is not guilty of the alleged offence.
18) Having held as above, the bar to grant of bail as contained under Section 37 of the NDPS Act gets attracted to the case of the petitioner and, as such, he is not entitled to grant of bail on merits.
19) Learned counsel for the petitioner has contended that even in a case where commercial quantity of contraband substance has been recovered from an accused, bail can be granted on account of his long incarceration. In this regard, the learned counsel has placed reliance upon the ratio laid down by this Court in the case of Mudasir Ahmad Dar vs. Union Territory of J&K & anr. 2021 (I) SLJ (HC) 60.
According to the learned counsel, in the said case the bail was granted to the petitioner therein even when he was found to be in possession of commercial quantity of contraband. It has been vehemently contended that the petitioner has been behind the bars for last more than one year and, as such, he deserves to be set at liberty otherwise it would amount to pre-trial punishment to the petitioner. Learned counsel has submitted that a lenient view in the matter is required to be taken having regard to the long incarceration of the petitioner.
20) So far as the judgment in Mudasir Ahmad Dar’s case (supra) is concerned, in the said case the Court has not dealt with the provisions contained in Section 37 of the NDPS Act and effect thereof upon a case where commercial quantity of contraband substance has been recovered from the accused. Therefore, the ratio laid down in the said judgment cannot be made applicable to the instant case. Once the provisions contained in Section 37 of the NDPS Act are attracted to a case, mere long incarceration of an accused would not come to his aid unless he is able to make out a case that there are reasonable grounds to believe that he is not guilty of such offence.
21) The Supreme Court in the case of Union of India vs. Ram Samujh and another,1999 (9) SCC 429, has laid down broad parameters to be followed while considering application for bail moved by the accused involved in the offences under NDPS Act. The relevant excerpts of the observations are reproduced as under:-
“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:
With deep concern, we may point out that the organized 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 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.
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.”
22) From the perusal of the aforesaid observations of the Supreme Court, it is clear that unless two conditions mandated under Section 37 of the NDPS Act are satisfied, an accused who is involved in offence relating to commercial quantity of contraband, cannot be enlarged on bail. The first condition is that the prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. Mere long incarceration of an accused by itself is no ground to enlarge him on bail in a case where rigour of Section 37 of the NDPS Act is attracted.
23) In view of what has been discussed hereinbefore, the instant bail application lacks merit and is dismissed accordingly.