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Judgment
On 10.01.2018, a police patrol party during a routine checking spotted two persons. They were carrying bags in their hands. They were asked to stop but they tried to give them a slip. They were chased and apprehended. They disclosed their names as Tauqeer Ahmad Hajam S/o Shamus-ud-Din Hajam R/o Checki-Ganastan and Jameel Ahmad Hajam S/o Mohd Ashraf R/o Rakhi-Shilvath. During the search of their bags, Charas in the form of Cakes, weighing 550 gms were recovered from the bag carried by Tauqeer Ahmad Hajam and a quantity of 2 Kgs of the same substance was found within the hold of Jameel Ahmad Hajam. On questioning, they divulged that they had obtained the Charas through illegal means for sale to the customers and, therefore offences under Section 8/20/29 NDPS Act, were found to have been made out against them, as a sequel to which, a case bearing FIR No. 10/2018 was registered against them for the commission of the aforesaid offences at police station Sumbal Bandipora, with which the investigation ensued. The samples of the Charas were taken. These were sent to J&K Forensic Science Laboratory, Srinagar, for examination and analysis. The statements of the witnesses conversant with the facts of the case were recorded and the site plan was also prepared. The accused were arrested. On the completion of the investigation of the case, a charge sheet in terms of Section 173 Cr. PC was laid against the accused/applicants before the Court of the learned Principal Sessions Judge, Bandipora.
In the instant application filed before this Court, the applicant seeks his release on bail. It is stated by the applicant that he has been falsely implicated in the aforesaid FIR on the basis of enmity with one political worker, who has received some amount from him for providing employment which he failed to provide. The applicant has further stated that he filed a bail application before the learned Sessions Judge, Bandipora, who is on Medical Leave and, as such, he had no other option but to invoke the jurisdiction of this Court for the grant of bail in his favour. He will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on him, in case he is admitted to bail. In the premises, the applicant has urged that he be admitted to bail for the commission of the aforesaid offences.
The respondents have resisted and controverted the application of the applicant chiefly on the grounds that the controlled drugs were recovered from the possession of the applicant. The applicant has committed a heinous offence. The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the applicant seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected, as the quantity of drugs recovered from him falls within the scales of commercial quantity.
Heard and considered.
In exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527 (E) dated 16th July, 1996, except in respect of things done or omitted to be done before such supersession, the Central Government specified the quantity mentioned in columns 5 and 6 of the Table, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the purpose of the said clauses of that section. Column 5 provides that a quantity upto 100 grams of Charas falls within the parameters of small quantity and a quantity of 1 Kg falls within the scales of the commercial quantity. The quantity of 2 Kgs of Charas recovered from the possession of the applicant, therefore, falls within the limits, bounds and the scales of a commercial quantity to which the rigor of Section 37 of the NDPS Act applies in all the fours. If a case falls within the scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility of the said provision in addition to other limitations prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as follows:
"[37. Offences to be cognizable and non-bail able;- (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,]."
From the perusal of Section 37 quoted above, it is evident that no person can be enlarged on bail, if he is found to be in the possession of a commercial quantity of Narcotics and Psychotropic Substances Act or offences under Section 19 or Section 24 or Section 27A Act unless the Court comes to the conclusion that the accused is not guilty of such an offence. These restrictions are provided in addition to the checks and curbs imposed under the Code of Criminal Procedure or any other law governing the grant of bails. In the present case, as is reiterated here, the commercial quantity of Charas has been recovered from the possession of the applicant. On the basis of the recovery of such a huge quantity of Charas found in the possession of the applicant, it can well be said that the applicant is prima facie involved in the commission for the offences aforesaid and there is no reasonable ground to believe that he is not guilty of such offences. The natural or unpresentable human propensity to always eat the forbidden fruits will ever find means and ways to frustrate the laws and rules prohibiting the use of all such stuff.
In view of the preceding analysis, the application of the applicant is rejected. He shall be at liberty to move an application for the grant of bail in his favour before the trial Court which shall be decided on its merits.
The bail application of the applicant is, accordingly, disposed of, along with connected MP(s).