Mohammad Sultan Lone vs State of Jammu & Kashmir

Mansoor Ahmad Mir, Judge

This bail application is the outcome of FIR No. 70/2011 registered at Police Station Bandipora under sections 8/20 of Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short NDPS Act).

It appears that ASI Abdul Rashid, No. 141 CR of Police Station Bandipora made a report on 22.03.2011 to SHO Police Station concerned

that he along with other police personnel while conducting searches of vehicles at Kaloosa Bridge during patrolling duty noticed suspicious

movement of two persons, one amongst them was carrying bag in his hand. On noticing the police party, one ran away and another man, who was

aged one, was arrested on-spot. Bag was seized and on searching it two kilograms of Charas was seized. The apprehended man disclosed his

name as Mohammad Sultan Lone son of Mohd. Sabar Lone resident of Kaloosa and also disclosed the name of person who ran away as Nazir

Ahmad Bhat son of Abdul Khaliq resident of Kaloosa, Bandipora. This set the police in motion, FIR No. 70/2011 was registered, investigation

was conducted and after investigation challan was presented before the Court of Law. Nazir Ahmad Bhat-accused is absconding and accordingly

challan came to be presented against him also u/s 512 Cr.P.C. Petitioner-accused stands charge sheeted for the commission of offence u/s 8/20 of

NDPS Act.

Petitioner Mohd. Sultan Lone moved application for grant of bail, was rejected vide order dated 30.07.2011 and thereafter has invoked the

jurisdiction of this Court in terms of section 498 Cr.P.C. for grant of bail.

The question for consideration is whether the petitioner is entitled to bail.

Section 37 of the Act prescribes factors, restrictions and conditions for grant of bail, in addition to the factors, restrictions and conditions

contained in sections 497 and 498 Cr.P.C. It is apt to reproduce section 37 of the Act herein.

Offences to be cognizable and non-bailable.-(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 u/s 19 or section 24 or section 27A and also for offences involving commercial

quantify 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.

Mandate of section 37 NDPS Act is that it is for the accused to plead and to satisfy that there are reasonable grounds to believe that he is not

guilty of such offence and that he is not likely to commit any offence while on bail.

The charge against the accused is that two kilogram charas recovered from them is of commercial quantity. The ground pressed into service by

the petitioner is that there is some irregularity committed by the investigating officer while sending the seized charas to FSL for its examination and

also the investigating officer has committed some irregularity while conducting investigation.

The fact of the matter is that the accused stands charge sheeted and is facing trial and has not questioned the framing of charge till today. At the

stage of framing charge, the court has to prima facie hold that whether there are grounds to presume that the accused is involved in the commission

of offence(s). The Court has held that there are grounds to frame charge, accordingly, charge stands framed.

Thus question is whether any irregularity, if at all committed, is a ground for bail. The answer is in negative. As discussed hereinabove, in terms

of section 37 of NDPS Act, petitioner has to carve out a case that he is not guilty. Prima facie the trial court has held that there are grounds to

presume that petitioner is involved in the commission of offence.

In the given circumstances, the petitioner has failed to carve out the case for grant of bail.

Viewed thus, no ground for bail is made out. Accordingly, the bail application is dismissed.