Mohd.Shakoor Khatana vs State of J&K & Ors.

Petitioner alongwith two coaccused persons namely Mohammad Ayoub Wani and Feroz Ahmed Lone are facing trial before the Court of

Learned Sessions Judge, Srinagar for commission of offence punishable under Section 20/28 of the Narcotic Drugs and Psychotropic Substance

Act hereinafter for short referred as ""NDPS Act"". Allegedly 11 packets, containing 33 kilograms of Charas, were recovered from the Vehicle

bearing Registration No. MH02N7852 which was intercepted by the Police at Pantha Chowk. The accused Feroz Ahmed Lone was driving the

vehicle who on interrogation revealed that the Charas had been kept concealed in the body of the vehicle by the accused, Shakoor Ahmed

Khatana. It was also divulged by him that the Charas belonged to the accused, Shakoor Ahmed and Mohammad Ayoub Wani. Both the accused

were also arrested on 22.02.2008.

Registration of the case as Crime No. 3/2008 by Police Station, CIK, Srinagar culminated in filing the charge sheet (challan) against all the three

accused for commission of offence punishable under Section 20/28 NDPS Act. Trial before the Learned Sessions Court is in its full swing.

Statement of some of the witnesses stand recorded. All the three accused have filed the petition for grant of bail before the learned Sessions Judge,

Srinagar.

For the detailed reasons given in the order dated 01.11.2008 disposing of the said petition, accused, Mohammad Ayoub Wani, has been

admitted to bail as reasonable ground primafacie were missing for believing commission of offence by the accused Mohammad Ayoub Wani. The

grant of bail in favour of the rest of the two accused stand declined with an observation that the said accused shall not be precluded from making a

fresh application at any subsequent stage.

The petitioner, Mohammad Shakoor Khatana, dissatisfied with the order, has filed the instant petition under Section 498 Cr. P.C. Objections

stand filed. Petitioner pursuant to order dated 23.12.2008 has filed the statement of witnesses recorded by the Trial Court subsequent to the order

of rejection of bail i.e. statement of one witness namely Latief Ahmed Kakroo recorded on 04. 12.2008.

Stringent Provisions incorporated in the NDPS so as to impose fetters vizaviz grant of bail, has social objective. Menace of use of drug so as to

destroy the social fiber has to be dealt with iron hand. Liberty, no doubt, is precious and guaranteed under Article 21 of the Constitution of India

but reasonable curtailment of right to liberty shall be imperative when being at large activities attributable to a person are such which may cause

discomf ort and the destruction to many people. There is no denial of the fact that the accused is presumed to be innocent unless guilty is brought

home but at the same time when the charges are heinous various factors which include interest of society have to be given preference. Concession

of bail vizaviz heinous offence which have terrible impact on the social system are to be taken care of.

The material placed on record for grant of concession of bail stands considered by the Learned Sessions Judge, Srinagar. Now, the only

change, according to the appearing counsel, is that the statement of one more witness has been recorded but no extenuating circumstances appear

therefrom so as to persuade exercise of discretion in favour of the petitioner.

Learned counsel, while claiming concession of (sic) relied on various judgments reported in SCC (2007) page 79, SLJ 2008 (1) Page 202,

Crimes 1992 vol2 Page 1003, Cr. L.J. (2003) Vol2, Page 2353, AIR 1988 SC Page 1705 and AIR 19(sic) SC Page 1871.

Every case has to be considered on the basis of own peculiar features. 33 kilograms of Charas have been recovered which admittedly is a

commercial quantity. If these kilograms of Charas would have reached to the destination would have caused damage, discomfort to the society and

were definitely pollute the social environment. So heinousness of offence in the given circumstances at this stage appears to horrifying.

Learned counsel next contended that since co accused Mohammad Ayoub Wani has been admitted to bail, therefore, petitioner on parity basis

is also entitled to concession of bail parity can be claimed only when both the accused on the facts and circumstances stand on the same footing.

The evidence so far led, as noticed by the Learned Sessions Judge, Srinagar, reveals that there are mitigating circumstances favourable to the

accused, Mohammad Ayoub Wani. Contraband has not been recovered at the instance of accused, Mohammad Ayoub Ward nor till date any

reasonable inculpatory circumstance has appeared in the evidence against him.

The test for extending concession of bail in terms of Section 37 of NDPS Act is that there must be reasonable ground or grounds to believe

that the accused is not guilty of offence. Satisfaction to that extent has to be recorded. Rejection of bail on primafacie satisfaction about reasonable

grounds for believing commission of offence shall have no bearing while recording the final judgment of acquittal or conviction.

Viewed thus at this stage, no satisfactory ground so as to extend concession of bail in favour of the petitioner is forthcoming. The application is

dismissed. However, it shall be open for the petitioner to invoke the jurisdiction of the Trial Court afresh at an appropriate stage for grant of

concession of bail, if so advised. It shall also be open for the Learned Trial Court to consider on the change of circumstances any fresh bail petition

if at all filed by the petitioner. Copy of the order be sent to learned trial Court for information.