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Judgment
Sanjay Dhar, J
1) Petitioner is seeking bail in FIR No.78/2020 for offences under Section 8/22/29 of NDPS Act registered with Police Station, Dangiwacha.
2) It is contended that the petitioner has been falsely implicated in the aforesaid FIR and a charge sheet has been laid against him in the year 2020 before the Court of learned Additional Sessions Judge, Sopore. It is averred that the statements of material witnesses of the prosecution have already been recorded and they have not deposed anything incriminating against the petitioner.
3) It is further averred that the petitioner had moved an application for grant of bail but the same was rejected by the trial court vide its order dated 31st of May, 2021. It is contended that while dismissing the bail application of the petitioner, the trial court did not appreciate the material on record in right perspective. It has also been contended that the petitioner was bailed out in some other matter by the Executive Magistrate, 1st Class, on 7th of July, 2020, and immediately thereafter on 8th of July, 2020, he was arrested by the police without any rhyme and reason. Lastly, it has been contended that while conducting the search, the police did not follow the procedure laid down under Section 50 of the NDPS Act and, as such, they have not acted fairly and transparently in this case.
4) The respondent-State has contested the application by filing reply thereto. While narrating the facts of the prosecution case, it has been averred that on 8th of July, 2020, the police patrolling party while on duty, near petrol pump, Watergam, found three persons moving in orchards in suspicious circumstances. These three persons on spotting the police party tried to escape from there but they were apprehended by the police party. From their possession 15 bottles of Coffcy-CD (Codine) were recovered which were lying in a polythene bag. These three persons disclosed their names as Aijaz Ahmad Wani, Naveed Ahmad Tantray (petitioner herein) and Mohammad Iqbal Parray. FIR No.78/2020 for offences under Section 8/22/29 of NDPS Act came to be registered and the recovered bottles of drug were seized on spot. The samples were sealed and sent to FSL for examination. After investigation of the case, offences under Section 8/22/29 of NDPS Act were found established against the accused including the petitioner herein and a challan was presented before the Court.
5) On the basis of aforesaid facts, respondent-State has contended that the petitioner has committed a heinous crime and, as such, he does not deserve to be enlarged on bail. It is contended that in case petitioner is enlarged on bail, he is likely to influence the witnesses and tamper with prosecution evidence.
6) I have heard learned counsel for the parties and perused the record of the case.
7) As per the case of the prosecution 15 bottles of Coffcy-CD (Codeine) have been recovered from the possession of co-accused who was moving in suspicious circumstances in the company of other two accused including the petitioner herein. The recovered medicine contains Codeine which is a Psychotropic drug. The quantity of recovered drug is, admittedly, in the realm of commercial quantity. Therefore, the provisions contained in Section 37 of the NDPS Act are attracted to the instant case. Section 37 reads as under:
"37.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 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."
8) From a perusal of the aforesaid provision, it is clear that in the cases in which commercial quantity of contraband is alleged to have been recovered from the accused, bail can be granted only if there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The said mandate of the legislature is required to be followed at the time of consideration of the bail application of the accused. These limitations on grant of bail are in addition to the limitations under the Code of Criminal Procedure.
9) The Supreme Court in the case of Union of India vs Ram Samujh and another,1999 (9) SCC 429, has laid down broad parameters to be followed while considering application for bail moved by the accused involved in the offences under NDPS Act. The relevant excerpts of the observations are reproduced as under:-
"It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
In the light of aforesaid legal principles, the contentions of the petitioner are required to be considered.
10) It has been contended by learned counsel for the petitioner that the witnesses examined by the prosecution in this case have not implicated the petitioner, as such, the learned trial court was not justified in rejecting his bail application. According to learned, if the learned trial court would have appreciated the statements of witnesses recorded by the prosecution in correct perspective, it would have come to a conclusion that the accused/petitioner is not guilty of the alleged offences.
11) The petitioner has placed on record copy of one statement of prosecution witness whose statement has been recorded by the trial court. A perusal of the statement of the said witness clearly revels that the has more or less toed the prosecution line. He has stated that all the three accused including the petitioner here were moving together in suspicious circumstances and they tried to run away after spotting the police party. He has gone on to state that from the possession of one of the accused, namely, Aijaz Ahmad, an associate of petitioner herein. 15 bottles containing Codeine were recovered. Thus, it is not a case where the said prosecution witness has, in his statement, exonerated the petitioner. Apart from this, there are other three prosecution witnesses who are yet to be examined in the case. All these three witnesses are material in nature and without their examination, it will not be possible for this Court to make an opinion as to whether or not the accused is prima facie guilty of the alleged offences.
12) As already noted, Section 37 is a complete bar to the grant of bail to a person who is accused of an offence involving recovery of commercial quantity of contraband unless it is shown to the Court that he is not quality of such an offence. In the instant case, there is material on record in the shape of statement of witness recorded by the trial court as also the statements of witnesses recorded by the investigating agency during the investigation of the case which shows the involvement of the petitioner in the alleged crime. Therefore, by no stretch of imagination it can be said at this stage that there are reasonable grounds for believing that the petitioner is not involved in the offence of being in constructive possession of commercial quantity of manufactured drug without authorization.
13) The other contention raised by the learned counsel for the petitioner is that in the instant case at the time of conducting search, the investigating agency has not complied with the provisions contained in Section 50 of the NDPS Act. The contention appears to be without any substance for the reason that it is not a case where police has, on the basis of a prior information, conducted the search of the accused but it is a case of chance recovery. Therefore, the provisions contained in Section 50 of the NDPS Act may not be applicable to this case. Even otherwise, the question whether requirements stipulated in Sections 42 and 50 of the NDPS Act have been adhered to by the investigating agency, cannot be determined in these proceedings. These are the matters of trial and have to be decided only after the prosecution evidence is completed.
14) For the foregoing reasons, there is no merit in this application. The same is, accordingly, dismissed.