Jasbir Singh vs U. T. Of Jammu And Kashmir

Rajnesh Oswal, J

The petitioner is facing trial for commission of offences under section 8 and 15 of the Narcotic Drugs Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) before the court of Additional Sessions Judge, Udhampur (hereinafter to be referred as ‘the trial court’) on the allegation that on 04.01.2021, the petitioner was driving a truck bearing registration No. PB23T 3485 from Srinagar to Punjab and at naka point Jakhani, it was stopped for checking and during search of the vehicle, five plastic bags were seized wherefrom 55.750 kgs of Poppy Straw (Bhukki) was recovered.

The petitioner is seeking bail on the grounds that he has been in custody for the last three years, in a false and frivolous case and there are material contradictions in the evidence led by the prosecution. The petitioner had earlier approached the court of learned Additional Sessions Judge Udhampur for grant of bail but could not succeed.

The respondent has filed the response. In the reply, the factual aspects of the case have been narrated.

Learned counsel for the petitioner has vehemently argued that there are material contradictions in the statements made by the prosecution witnesses, as such, the petitioner deserves the concession of bail.

On the contrary, Mr. Dewakar Sharma, learned Dy.AG representing respondent has vehemently argued that the prosecution has almost examined all the material witnesses except few and at this stage, the petitioner cannot be granted bail, particularly when the rigors of Section 37 of the NDPS Act are applicable.

Heard and perused the record.

The allegations leveled against the petitioner are in respect of recovery of 55.750 Kgs Poppy Straw from the truck, which was being driven by the petitioner. After examining the record of the trial court, this Court finds that the petitioner was charged for commission of offences under sections 8 and 15 of the NDPS Act on 05.10.2021 and till date out of 17 witnesses, the prosecution has examined 7 witnesses. PW-1 Kaka Ram is already dead and one witness was dropped by the prosecution. PW-1 Kaka Ram and PW-2 Bambery have cited as the witnesses to the seizure memo. As already stated, the PW-1 is dead and PW-2 has been examined. Besides the marginal witnesses, the seizure memo has been attested by the Executing Magistrate 1st Class-Mohd Saleem, who has not been examined till date. The petitioner is seeking bail on the ground of contradictions between the statements made by the prosecution witnesses. Since the quantity of contraband recovered from the petitioner is commercial quantity, as such, the rigors of Section 37 of the NDPS Act are applicable. The petitioner can be granted bail only, if the Court is in position to return a finding that the petitioner is not guilty of commission of offence(s) for which he has been charged. From the perusal of the statements made by the prosecution witnesses, it cannot be said at this stage that there is no evidence against the petitioner.

Whether the evidence led by the prosecution is sufficient for convicting the petitioner or not, is to be examined while appreciating the evidence during trial. In a judgment of the Apex Court in Kalyan Chander Sarkar v Rajesh Ranjan@ Pappu Yadav (2005) 2 SCC 42, it has been held that while considering the bail application, the evidence cannot be appreciated.

Viewed thus, this Court does not find any merit in the present bail application, as such, the same is dismissed. The learned trial court is requested to ensure that the remaining witnesses are examined as expeditiously as possible and no adjournment be granted to either of the parties in a routine manner, until or unless circumstances warrant so.