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Judgment
In terms of the instant petition, petitioner herein seeks grant of bail in case FIR No.06/2018, Police Station, Sumbal, Bandipora for the commission of offence punishable under Section 8/21 of NDPS Act. It is stated that the petitioner is facing trial before the court of learned Principal Sessions Judge, Bandipora. It is the contention of learned counsel for the petitioner herein that during the pendency of bail application filed before this Court, the bail application filed before the learned trial court got dismissed as withdrawn, as the counsel therein for the petitioner without any express authority seems to have not pressed the said bail application.
The grounds taken in the present petition to admit the petitioner to bail are precisely as:-
"...That the petitioner has been falsely implicated in a frivolous case and is behind the bars since last more than nine months. It is further contended that the allegation levelled against the petitioner that 55 bottles each containing 100 ml of a substance of codeine phosphate was recovered from his possession is false. That the Petitioner has filed bail application before the learned trial court, which has not been decided because of delaying tactics of the Public Prosecutor. Thereafter petitioner was constrained to approach this Court through the medium of Bail Application No. 127/2018, which stands disposed of vide order dated 04.10.2018 with the direction to the trial court to decide the bail application of the petitioner within week‟s time.
That all the allegations against the petitioner are baseless and unsustainable, therefore, the petitioner is entitled to the concession of bail. Since the trial before the trial court goes on at snail‟s pace and the petitioner being in custody for more than nine months and as such deserves to be released on bail.
That the petitioner has no criminal background nor has ever been involved or convicted by any court. It is submitted that the petitioner is innocent and has been falsely implicated in the case FIR No. 06/2018, P/S Sumbal, Bandipora, therefore, petitioner be ordered to be released from the custody..."
Objections stand filed on behalf of the respondents, wherein it is contended that:-
"....That on 7.01.2018 a docket received by this Police Station Sumbal through Constable Sajad Ahmad 931/Bpr from Station House Officer Police Station Sumbal stating their in that during the Naka duty at Arampora near FCI Sumbal along-with Escort party one person was found carrying one bag in his hand who was coming link road towards main road Sumbal. As soon as he reached on main road he was asked to stop but the said person tried to flee but he was chased and caught nearby. The bag was taken into possession and searched thoroughly.
That during the search of his bag 55 bottles of Welcyrex packed in three packets were recovered from his bag. On preliminary questioning he revealed his name as Irshad Ahmad Reshi R/o Sumbal, but could not depose anything about the possession of banned drugs. Which clearly indicates that he is involved in periphery of these contraband drugs etc. In this regard case FIR No.06/2018 under Section 8/21 NDPS Act stands registered in the Police Station and investigation taken up by SI Abdul Ahad 691/Sec of this Police Station.
That during the investigation, Investigation Officer proceeded on spot prepared site plan, seizure memo prepared by Station House Officer was seized by I/O and 55 Bottles Welcyres of 100 ML each with description Chlertheniramina Maleate and codeine Phosphate syrup 100 ML each was seized on spot. Photographs of the seized material was taken seizure memo prepared and sealed in one packet and statements of the witnesses were recorded as per the statements of the witnesses and material seized office under Section 8/21 NDPS Act was substantiated against the accused person namely Irshad Ahmad Reshi R/o Arampora Sumbal. The seizure parcel was produced before the Executive Magistrate 1st Class Sumbal for opening the seal and resealing for forwarding of exhibits of FSL Srinagar for opinion. Executive Magistrate 1st Class opened the seal and took out exhibits and marked the packets as (A1 and A2) and released them. Exhibits were send to FSL Srinagar for chemical analysis/report was received from FSL Srinagar which corroborated the plea of the complaint. Statement of some material witnesses were recorded under Section 164-A CrPC before the Hon‟ble Court fo JMIC Sumbal. The accused person was lodged in central Jail Srinagar on judicial remand and the challan of the case was produced before the Hon‟ble Court of Sessions Judge, Bandipora."
On perusal of the file, it appears that earlier bail application presented before this Court was disposed of vide order dated 4th October, 2018 with the direction to the learned trial court to decide and determine the entitlement of petitioner to bail. Thereafter, learned Principal Sessions Judge, Bandipora through communication dated 13.10.2018 addressed to Registrar Judicial, High Court of J&K, Srinagar, intimated that counsel for the accused/petitioner herein expressed his desire to withdraw the bail petition, which was accordingly dismissed/withdrawn as not pressed.
Be it so, the ground projected in the present petition is that the petitioner is innocent and has no criminal background nor has ever been involved or convicted by any court of law. The bail cannot be refused as a matter of punishment as the petitioner having no criminal background, according to the learned counsel for the petitioner.
Learned counsel for the petitioner on being heard has taken reliance on the following judgments:-
i) Sanjay Chandra v. CBI, (2012) 1 SCC, 140;
ii) Tariq Ahmad Dar and Anr. v. State and others, 2008 Cri. L.J 3584;
iii) Rupai Kumar Das v. State of Karnataka, Cr.Pet.No.9138/2017, decided on 03.01.2018.
In Sanjay Chandra's case, their lordships have enunciated :-
"Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses.
Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
When the under trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.
This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
In `Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.
In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the learned counsel for the parties and the case laws relied on in support of their respective contentions. We clarify that we have not expressed any opinion regarding the other legal issues canvassed by learned counsel for the parties.
In the result, we order that the appellants be released on bail on their executing a bond with two solvent sureties, each in a sum of `5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the conditions stipulated therein."
In Tariq Ahmad Dar's case, the contraband allegedly recovered from the accused was 20 kgs. of poppy straw, so Section 37 of NDPS Act was not applicable. The learned trial court rejected the bail application on the ground that few witnesses are yet to be examined.
This Court in the case supra had observed and held that:-
"...The prolonged incarceration unless justified cannot be permitted. The accused has admittedly been arrested on 2.4.2007, means the accused are in the jail for last more than ten months. The detention or custody cannot be by way of punishment. Continuous incarceration in the facts and circumstances of the case may amount to sentencing the accused before conviction. After all in criminal jurisprudence the accused is presumed to be innocent until guilt is brought home. This cherished principle cannot be ignored. It is fact that narcotic drugs have the effect of polluting social environment. The offenders are required to be dealt with iron hand i.e. to say if the charge is proved exemplary punishment can be awarded. While viewing the object of Section 497 Cr.PC grant of bail in the given circumstances cannot be withheld especially, when the restraint clause is not applicable. Accused deserve to be admitted to bail. Application as such succeeds. Accused are ordered to be released on furnishing bail to the tune of Rs.30,000/- each to the satisfaction of learned Sessions Judge, Pulwama and the personal bond of like amount subject to the conditions stipulated therein..."
It is emphatically submitted by the learned counsel for the petitioner that reference to Section 37 of NDPS Act would not be attracted in the instant case. According to him, only two witnesses have been examined so far who too do not corroborate with the case of the petitioner. Furthermore, learned counsel for the petitioner submits that the mandate of Section 50 of NDPS Act has not been complied with by the investigating agency which has curtailed the fundamental rights of the petitioner. It is his further submission that the recovery has not been made in presence of any independent witness on spot which shows the investigation has been conducted in violation of rights of the petitioner. The petitioner who is behind the bars since last more than 09 months is entitled to bail, according to learned counsel for the petitioner.
Per contra, Mr. Feroz, learned Dy.AG submitted that reference of Section 37 of NDPS Act would be attracted in the instant case. He submits that the petitioner herein is involved in the commission of serious offences and the edifice of the case of the prosecution is laid on the recovery of the huge quantity banned drugs i.e. 55 bottles of welcyrex from the petitioner herein on the pertinent date. The said recovery took place by chance during Naka duty at Arampora, Sumbal. Learned Dy.AG has made reliance on the judgment of Hon'ble Apex Court reported in AIR 2000 SC, 3661, Superintendent Narcotics Central Bureau Vs. R. Paulsamy and while making reference of Para-6 of the said judgment submitted that the plea being taken for infraction of Section 50 of NDPS Act cannot be taken into consideration. It is also his submission that the trial has not been completed, so this Court cannot entertain the instant petition. Furthermore, withdrawal of bail application filed before the learned trial court be also taken into consideration.
Para-6 of the Apex Court judgment referred supra may be advantageous to be quoted herein:-
"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections."
The observations as appeared in the referred judgment regarding grant of bail are:-
"...The learned Single Judge of the High Court of Madras in the case supra had observed that since no document depicts that such a report has been send to the immediate official superior within 48 hours as contemplated under the said Section, therefore, found merit in the contentions raised about violation of Section 52 and 57 of NDPS Act."
Rationale adopted by learned Single Judge referred above was found to be not within the parameters of law, however, it was clarified that the order would not stand in the way of the respondent satisfying the trial court or the High Court on any fresh application, by which he would fall within the parameters contemplated under Section 37 of the Act. The contentions raised that there was nobody to look after the children of the respondent as both the parents were in jail, was not found sufficient to admit the respondent to bail.
Reverting back to the instant case, it is evident from the perusal of record/attested copies of relevant documents, which have been called in terms of the earlier order passed by this Court that the petitioner herein is involved for the commission of offence under Section 8/21 NDPS Act. The petitioner has been charged for the commission of offence of having been involved in narcotic trade and from his possession commercial quantity of banned drugs was recovered.
In terms of the notification of 2009 issued by Central Government specifying small quantity and commercial quantity of narcotic drugs or psychotropic substances, the whole content of preparation of drug is to be reckoned for working out its quantity.
In the instance case, 55 bottles (100 ml. each), with the ingredients of codeine phosphate were recovered allegedly. Codeine is mentioned in the Table of NDPS Act at S.No.28, in terms of which small quantity is mentioned as 10 gms. Whereas commercial quantity is mentioned as 1 kg. The total quantity of the recovered drug would be thus, 55x100 ml.=5500 ml.
On a summary analysis of the same, thus, the recovered drug falls within the commercial slab, so the rigour of Section 37 of NDPS Act is attracted.
The defence taken in terms of the instant case by the petitioner herein for not being involved at any time in the offences attributed to him, cannot be gone into by this Court as it is for the learned trial Court to examine the credibility and acceptability of this preposition at appropriate stage.
Copy of this order be send to the learned trial court, for information.