Imtiyaz Ahmad Wagay vs Union Territory Of J&K

Rajnesh Oswal, J

The petitioner has filed the instant bail application seeking bail in challan titled “Union Territory of J&K vs Imtiyaz Ahmad Wagay†pending

before the Court of Sessions Judge, Shopian arising out of FIR bearing No. 92/2020 of Police Station, Imamsahib, Shopian for commission of offences

under sections 8 and 21 of the NDPS Act (for short the Act), after his bail application was rejected by the learned Sessions Judge Shopian vide order

dated 23.03.2021.

Briefly stated, the instant bail application has been filed on the ground that the petitioner has been in custody eversince November, 2020 despite the

fact that the petitioner is not involved in commission of any offence and no recovery has been effected from the petitioner. It is further stated that the

quantity of alleged contraband recovered from the petitioner is in between small and commercial quantity and rigors of section 37 of the Act are not

applicable.

Reply stands filed by the respondent in which it is stated that on 06.11.2020, the Police of Police Station, Imam Sahib, Shopian established a Naka at

D. K. Pora Manihal Crossing and during checking one suspicious person was stopped, who tried to fled away but was caught and during his personal

search, a polythene packet containing powder like substance apparently ‘Brown Sugar’(heroin)was recovered from his possession and during

questioning, the person revealed his name Imtiyaz Ahmad Wagay S/o Ghulam Hassan Wagay R/o Village, Tachloo, District, Shopian, The substance

was weighed 92 grams and thereafter on the basis of written docket, FIR No. 92/2020 under sections 8/21 of the NDPS Act was registered. It is

further stated that as per the report of FSL, the contraband was found to be ‘Brown Sugar’.

Mr. Abdul Basit Bhat, learned counsel for the petitioner has vehemently argued that the petitioner has been in custody for the last more than seven

months and the quantity of contraband allegedly recovered from the petitioner does not fall within the category of commercial quantity so the rigors of

section 37 of the Act are not applicable.

Per contra, Mr. M. A. Chashoo, learned AAG appearing for the respondent, has vehemently argued that the petitioner is involved in an offence

against the society, as such, he cannot claim bail as a matter of right.

Heard and perused the record.

The quantity of contraband recovered from the petitioner is 92 grams of ‘Brown Sugar’ which fall within the category of intermediate

quantity as per the Item No. 56 of the Notification, as such, rigors of section 37 of the Act do not apply. The respondent has not placed anything on

record that the applicant/petitioner is a habitual offender and he is involved in the commission of similar type of offences. The investigation has

culminated into filing of challan which clearly shows that the presence of the petitioner is not required for the purpose of investigation but only during

the trial. The allegations against the petitioner are subject to proof during the trial.

Having taken into consideration that the quantity of contraband falls within the category of intermediate quantity and also that the challan has been

filed against the petitioner, this Court is of the considered opinion that the petitioner deserves to be enlarged on bail, particularly in view of the fact that

the petitioner has been in custody for the last more than seven months.

In that view of the matter, this application is allowed. The applicant/petitioner is enlarged on bail on the following conditions:

(i) subject to furnishing of two solvent sureties to the tune of Rs. 50,000/- each and personal bond of the like amount to the satisfaction of the trial

court.

(ii) he shall not contact with any of the prosecution witnesses during the trial and shall regularly appear before the trial court.

In the event of violation of any of the conditions mentioned above, the respondent can lay a motion for cancellation of bail of the

applicant/petitioner before the trial court.

Disposed of accordingly.