Salman Chandail vs State Of J&K

Initially, the petitioner had filed a criminal revision against order dated 28.08.2019 passed by the learned Special Judge (Principal Sessions Judge),

Udhampur (hereinafter referred to as “the trial Courtâ€), whereby the learned trial Court had rejected the bail application of the petitioner.

However, in terms of order dated 11.08.2020 passed by this Court, the criminal revision petition, on request of learned counsel for the petitioner, was

converted into bail application.

Briefly stated, the case of the prosecution is that on 20.07.2018 at about 6.15 p.m., a police party intercepted a Maruti Car bearing Regd.

No.JK13/0329 at Jekhani Nakka Point. The car was subjected to checking and upon checking, one plastic bag was recovered from inside the car and

one more plastic bag was recovered from the dicky of the car. The bags were found to contain “poppy strawâ€​. The driver disclosed his identity as

Salman Chandail, the petitioner herein. Accordingly, FIR No.356/2018 for offences under Sections 8/15 of NDPS Act was registered and the

petitioner was arrested.

During investigation of the case, the recovered poppy straw was found to be 54 kgs in weight and after investigation of the case, offences under

Sections 8/15 of NDPS Act were found established against the petitioner and charge-sheet was laid before the learned trial Court.

It appears that the petitioner had moved an application for grant of bail before the learned trial Court, but the same came to be dismissed by the

learned trial Court vide order dated 28.08.2019.

The petitioner has sought bail by way of instant petition on the ground that the case lodged against him is false and frivolous; that as per the

prosecution case, 54 kgs of poppy straw was recovered from the petitioner and admittedly, the recovered poppy straw was weighed alongwith the

bags in which the same was contained and, as such, if weight of the bags is deducted, the recovered quantity of contraband would come within the

parameters of intermediate quantity thereby taking out the case of the petitioner from the applicability of the rigor of Section 37 of NDPS Act; and

that the learned trial Court, while rejecting the bail application of the petitioner, has wrongly applied the rigor of Section 37 of NDPS Act to the case of

the petitioner.

The respondent has resisted the bail application of the petitioner by filing reply thereto. In its reply, the respondent has, beside narrating the facts of

the prosecution case, contended that the petitioner is involved in a grave offence and that the rigor of Section 37 of NDPS Act is applicable to the

case of the petitioner, as commercial quantity of contraband has been recovered from him.

I have heard learned counsel for the parties and perused the record of the case including the record of the learned trial Court.

The only ground that has been urged by the petitioner during the course of the arguments is that as per the prosecution case, the recovered poppy

straw, which was lying in two bags, was weighed along with the bags so as to convert the quantity of recovered contraband into commercial quantity.

It has been contended that if the weight of the bags is deducted, the recovered contraband would fall in the category of intermediate quantity, thereby

taking out the case of the petitioner from the applicability of the rigor of Section 37 of NDPS Act. The learned counsel has further contended that in

such like matters, the accused deserves to be given the benefit of doubt so far as quantity of the recovered drug is concerned and his case for grant of

bail deserves to be considered in light of the law applicable to the case(s) pertaining to recovery of intermediate quantity of contraband drug. To

support his contention, learned counsel has placed reliance upon a judgment of Punjab & Haryana High Court in the case of Kuljeet Singh v. State of

Punjab (CRM-M3560-2019) decided on 01.02.2019.

It is correct that as per the case set up by the prosecution in the charge-sheet laid before the trial Court, the recovered poppy straw was weighed

along with plastic bags in which the same had been stored. The charge-sheet reveals that the recovered poppy straw had been kept in two plastic

bags and each plastic bag along with its content weighed 27 kilograms. Ideally, the Investigating Agency is expected to determine the actual weight of

the recovered contraband but in the instant case, the Investigating Agency has weighed the contraband alongwith the bags in which it had been stored.

As per the notification issued in terms of Section 2 of the NDPS Act, 50 kgs of poppy straw falls under the category of “commercial

quantityâ€. The question arises, if the weight of the bags in the instant case is deducted from the total weight of recovered contraband, whether the

quantity of recovered contraband would come down to the category of intermediate quantity. There is no material on record that would answer this

question and on the basis of the material before this Court, it is not possible to come to any conclusion in this regard.

It is not a case where the quantity of the drug recovered from the accused is marginally above 50 kgs but it is a case where the quantity of drug

recovered is 4 kgs above the ceiling of commercial quantity. In these circumstances, it would be difficult for this Court to hold that the quantity of

contraband recovered from the petitioner, after deducting the weight of the plastic bags, would, in the instant case, fall in the category of intermediate

quantity. The aforesaid question, therefore, can best be determined during trial of the case and I find from the trial Court record that as many as five

prosecution witnesses, out of 11 cited witnesses, stand examined by the trial Court and most of these witnesses have been cross-examined by the

defence on this aspect of the case.

This Court would not like to comment on the question whether or not from the cross-examination of the prosecution witnesses, the defence has

succeeded in showing that the actual quantity of drug recovered from the petitioner falls in the category of intermediate quantity lest it may prejudice

the case of the parties before the trial Court. Even otherwise, it is not open to this Court to meticulously analyze the material and evidence on record

of the trial Court for determining this question, at this stage, during bail proceedings.

So far as the ratio laid down in the judgment of Punjab & Haryana High Court, cited by the learned counsel for the petitioner is concerned, I would

respectfully beg to differ with the same for the reason that the judgment has not elaborately discussed the law on the subject and the same is devoid of

elaborate reasoning.

As already noted, the question as to what was the actual quantity of contraband recovered from the petitioner can be determined only during trial

of the case and this Court cannot speculate about the actual weight of the contraband recovered and the weight of the bags in which the recovered

contraband was stored, as there is no material before this Court to frame even a prima facie opinion in this regard.

For framing a prima facie view that the recovered contraband would fall in the category of intermediate quantity, there has to be some material

before this Court, which is lacking in the instant case. In the absence of any such material and having regard to the material on record, it appears that

the quantity of recovered contraband falls in the category of „commercial quantity‟ and, as such, the rigor of Section 37 of NDPS Act would apply

to the instant case with full force.

Having held as above, I do not find any material on record to hold that there are reasonable grounds for believing that the petitioner is not guilty of

the offence of possessing commercial quantity of contraband drug. Therefore, the petitioner is not entitled to grant of bail, at this stage. Thus, the

conditions for grant of bail as contemplated in Section 37 of NDPS Act are not satisfied in this case.

For the foregoing reasons, the application is found to be without any merit and is dismissed as such. The petitioner is, however, at liberty to

approach the trial Court with an application for grant of bail on the basis of material that has been brought before the trial Court during the trial of the

case, which, as per the trial Court record has progressed substantially.