Shakeel Ahmed Dar vs Union Territory Of J&K And Another

The petitioner has filed the instant application for grant bail in FIR No.55/2019 for offences under Sections 8/21/22/25/29 NDPS Act registered by

police of Police Station, Samba.

It is contended that the petitioner is an innocent person and even during investigation of the case, it was found by the Investigating Officer that the

petitioner is having no connection with regard to the commission of alleged offence. It is averred that the Investigating Officer has made an entry in

the case diary to the effect that the petitioner is not connected with the alleged crime. It is further contended that inspite of this, the Investigating

Agency has filed a challan against the petitioner before the learned Trial Court. According to the petitioner, even in the challan there is nothing new to

implicate him in the alleged crime. The petitioner has also submitted that there are reasonable grounds for believing that he is innocent and that he has

no connection with the commission of offence and, as such, he is entitled to grant of bail.

The respondents have filed reply, in which it is submitted that 1210 bottles of Cadila Cough Syrup were recovered from the truck bearing

No.JK024E/5197, whereas 1004 bottles of Codeine Phosphate were recovered from the truck bearing No.JK03/1708 in which besides driver, the

petitioner was also travelling. Thus, according to the respondents, commercial quantity of contraband drug has been recovered from the possession of

the petitioner and other co-accused. On this basis, it is contended that the bar contained in Section 37 of the NDPS Act is attracted in the instant case

and the petitioner is not entitled to grant of bail.

I have heard learned counsel for the petitioner and I have also gone through the record of the Trial Court.

It appears that initially the petitioner had approached the learned Trial Court for grant of bail but his attempt had failed, as his application was

rejected vide order dated 22.08.2020 passed by the Trial Court, copy whereof is on the record of the file.

The record reveals that on 12.03.2019, the police intercepted two trucks bearing No.JK03H/1708 and JK04E/5197 at National Highway, Supwal.

Upon checking of truck No.JK03H/1708, three plastic bags containing 1004 bottles of cough syrup (100 ml each) containing Codeine Phosphate were

recovered, whereas from truck No.JK04E/5191, 1210 bottles of cough syrup (100 ml each) containing Codeine Phosphate were recovered. The FIR

in question came to be registered and investigation of the case was set into motion. After conducting the investigation, charge-sheet was filed before

the learned Trial Court. The Trial Court record reveals that vide order dated 12.10.2019 passed by the learned Trial Court charges for offences under

Sections 8/21/22/25 NDPS Act stand framed against all the accused including the petitioner herein and trial of the case is going on. It appears that till

date only one prosecution witness has been examined before the Trial Court.

The main contention raised by the learned counsel for the petitioner is that the petitioner was simply travelling in the truck in question, he was

neither its driver nor its owner, on this ground it is urged that there is no material on record to show that he was in possession of the recovered

manufactured drug without any valid authorization, as has been alleged by the prosecution. In this regard the petitioner is relying upon some noting of

the Investigating Officer in the case diary.

To determine the question as to whether there is any material on record to show involvement of an accused in the crime, the Court is required to

analyze and consider the charge-sheet and the documents attached thereto. If we have a look at the statements of the witnesses recorded under

Section 161 Cr.P.C. as also the statement of lone witness that has been examined before the Trial Court, it is clear that the aforesaid two trucks were

intercepted by the police and bulk quantity of manufactured drugs were recovered therefrom. It also shows that the persons travelling in the two tucks

could not produce any authorization in this regard. The statements of witnesses recorded under Section 161 Cr.P.C would also show that the petitioner

herein was travelling in truck bearing No.JK03H/1708 and from there a part of the consignment of the manufactured drugs was recovered. The

contention of the petitioner that he had nothing to do with the recovered consignment of the manufactured drugs cannot be determined at this stage.

The merits of the same can be decided only after trial of the case. At this stage, there is material on record to prima facie show that the petitioner was

in conscious possession of the part of the consignment of manufactured drug without any authorization. It is for this reason, the petitioner has been

charged for the offences under Sections 8/21/22/25 NDPS Act by the learned Trial Court vide order dated 22.10.2019, which, to the knowledge of this

Court, has not been challenged by the petitioner.

Section 37 of NDPS Act is a complete bar to grant of bail to a person, who is accused of an offence involving commercial quantity, unless it is

shown to the Court that there are reasonable grounds for believing that he is not guilty of such offence.

In the instant case, there is material on record to show that the petitioner was in conscious possession of commercial quantity of manufactured

drugs without any authorization. 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 possession of commercial quantity of manufactured drugs without authorization.

For the foregoing reasons, there is no merit in this petition. The same is, accordingly, dismissed.