Firdous Ahmad Wani vs Ut Of J&K

The instant bail application has been filed by the petitioner for seeking bail in case FIR No. 173/2019 for commission of offences punishable under

Sections 8/20 and 29 NDPS Act, registered at Police Station, Sumbal.

According to the prosecution version, on 03.11.2019 Police Station Sumbal, received a docket from ASI Nazir Ahmad No. 71/BPR incharge Naka

Party Wangipora revealing that on 03.11.219 at 07:45 hours during vehicle checking one Scooty bearing registration No. JK15-7696 being driven by

one person along with a passenger was stopped for checking in routine and that the riders tried to flee from the spot and upon being chased came to

be apprehended. Upon questioning the said persons disclosed their names as Mohammad Shafi Rather S/o Ghulam Hassan Rather R/o Hilalabad

Nesbal and Jahangir Ahmad Rather S/o Zahoor Ahmad Rather R/o Arampora Sumbal and on being searched were found carrying two nylon bags

containing Cannabis straw like substances approximately 17 Kgs for selling the same amongst youth. Upon receipt of the docket, the FIR supra is

stated to have been registered and investigation set into motion, whereupon seizure memo is stated to have been prepared in presence of SDPO

Sumbal and statements of material witnesses recorded establishing commission of offences in question by the accused persons and during their

questioning are stated to have disclosed that the substances in question had been purchased/taken by them from one Firdous Ahmad Wani S/o Ghulam

Hassan Wani (petitioner herein) and Lateef Ahmad Wani S/o Abdul Samad, both residents of Inderkoot Sumbal and upon effecting search in the

house of the petitioner, one Nylon bag containing 11.80 Kgs of Bhung straw along with maize husk 06 Nos. carrying 100 grams like substances of

Charas were recovered and petitioner was found involved for commission of offences under Section 8/20 NDPS Act. The samples of the alleged

drugs are stated to have been forwarded to FSL Srinagar for obtaining expert opinion, upon receipt of which same had been found to be narcotic

substances. The petitioner is stated to be involved in illegal trade of drugs posing serious threat to the youth.

The petitioner herein in the petition on the other side states to have been falsely implicated in the FIR in question and arrested during a raid at his

house upon a confessional statement of co-accused persons.

It is being stated that the whole story of prosecution is concocted and fabricated and no recovery whatsoever has been made from the person of

the petitioner though the recovery of the alleged contraband is stated to have been recovered from his house yet the petitioner claims to be innocent

and law abiding citizen having not committed any offence whatsoever.

It is being stated that the prosecution version is baseless so much so none of the mandatory provisions under the Act, with regard to the arrest,

seizure and raid are stated to have been complied with in accordance with the Act by the respondents. The alleged contrabands seized are stated to

fall under the category of an intermediate and small quantity under the Act thus, excluding the application of Section 37 of the Act.

It is being stated that the two other co-accused persons have been granted bail by this Court entitling the petitioner to bail as well on the ground of

parity.

Heard learned counsel for the parties and considered the matter.

Learned counsel for the parties while making their respective submissions reiterated their contentions raised and grounds urged in their respective

pleadings.

It is pertinent and profitable to mention here that the provisions of Section 37 of the Act are applicable for Commission of offences under Sections

19, 24 and 27-A only when a commercial quantity of a drug or substance is recovered. Section 37 supra forbids release on bail of a person who is

found in possession of commercial quantity of drug or substance unless the prosecution is given an opportunity to oppose the bail application and the

court finds that the accused is not prima facie involved in the commission of offences. The aforesaid rider is in addition to the restrictions imposed by

Section 497 Cr. PC. Indisputably the petitioner is implicated under Section 8/20 and 29 of NDPS Act and therefore the provisions of Section 37 are

not attracted thereto. This position has admittedly not been denied by the respondents in their objections as well.

The settled position of law as evolved by a long line of decisions of the Apex court on the subject relating to the grant of bail is that there is no

straight jacket formula or settled rules for the use of discretion but at the time of deciding the question of “Bail or Jail†in non-bailable offences,

court has to utilize its judicial discretion not only as per the settled law but also according to the principles laid down by Cr. PC and judicial precedents.

Reference in this regard is made to the Apex court Judgment in case titled as “Data Ram Singh v/s State of Uttar Pradesh & Ors†reported in

2018 (3) SCC page 22, wherein at Paras 1, 2, 4 and 5 following has been noticed: -

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be

innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with

regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences.

Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a

prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles

appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not

do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of

judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country.

Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the

circumstances of a case.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an

accuse person to police custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor

that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading

to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons.

The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh

Tarachand Shah vs. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh

Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as

a punishment. Reference was also made to Emperor vs. H. L. Hutchinson wherein it was observed that grant of bail is the rule and refusal is

the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old,

going back to colonial days.â€​

The petitioner as has been noticed in the preceding paras in the instant petition has laid foundation for grant of bail on the bedrock of parity.

Perusal of the record reveals that co-accused Mohammad Shafi Rather has been granted bail by this court on 12.11.2020, while deciding his bail

application bearing no. 74/2020 and co-accused Jahangir Ahmad Rather has also been granted bail on 30.12.2020 in his bail application No. 73/2020 by

this court.

Pertinently an application for cancellation of bail granted in favour of said accused persons, filed by the respondents had been dismissed by this

court on 30.12.2020.

This court is conscious of the legal position enunciated by the various Courts that parity cannot be the sole ground for granting bail, yet it has also

been laid down therein by the courts that if upon examination of a given case it transpires that the case of petitioner before the court is identically

similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused

should be also released on bail.

Having regard to the aforesaid position as noticed and considered in the preceding paras, the case of the petitioner herein is found to be identically

similar to that of the above named accused persons deserving him enlargement on bail as well on the ground of parity.

Viewed thus in the aforesaid backdrop, the instant application is allowed and the petitioner/applicant is held entitled to bail subject to following

conditions:

I) Furnishing of personal bond to the tune of Rs. Fifty Thousand with two sureties of the like amount to the satisfaction of the trial court.

II) Not to leave the territorial jurisdiction of this Court without the permission of the trial court.

III) Not to influence directly or indirectly the prosecution witnesses or tamper with the prosecution evidence by any manner mode or method.

IV) To face and take the trial before the trial court without any fail.

Disposed of along with all connected CrLM(s).