Virender Singh vs Union Territory Of J&K

The petitioner figures as accused in challan pending before the court of learned 2nd Additional Session Judge, Jammu, arising out of FIR No.

131/2020 for commission of the offence under Section 8/15/25 of Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act).

The petitioner has filed an application for grant of bail before this Court after his application for grant of bail was rejected by the court of learned 2nd

Additional Session Judge, Jammu, vide order dated 05.10.2020. The petitioner is seeking bail on the ground that he has been in custody ever since his

arrest on 21.07.2020 and has no past criminal antecedents. It is further stated that the investigation in the matter stands completed and no further

recovery is required to be effected and the custody of the petitioner is no more required by the Police for any further investigation. It is further stated

in the application that the petitioner is the only earning male member of the old and ailing parents and in the absence of the petitioner, it has become

very difficult for the family members of the petitioner to sustain.

The respondent has filed the objections, in which they have stated that the offence committed by the petitioner is heinous and against the society at

large and no leniency deserves to be given to the petitioner. The factual aspects of the case have also been narrated by the respondents in their

objections.

Before appreciating the contentions of the parties, it is appropriate to have a brief resume of the allegations against the petitioner. From the record,

it transpires that on 21.07.2020 at about 2 P.M. one truck bearing registration No. UK06CA/4887 that was coming from Udhampur to Jammu and

was being driven by the petitioner, was stopped for the checking at Naka point Suketar and during checking, one plastic bag yellow in colour was lying

on the body of the truck under two plastic sheets along and one hand bag was found behind the driver. On opening the one plastic bag, the Police

authorities found Bhooki like substance. The same was weighed and found to be 110 kg and a cash of Rs. 55,000/- was also found from the hand bag

and on this basis, FIR bearing No. 131/2020 under Section 8/15/25 NDPS Act was registered against the petitioner and subsequently after the

completion of the challan, the charge-sheet against the petitioner was filed and the petitioner is facing trial before the court of 2nd Additional Session

Judge, Jammu.

Learned counsel for the petitioner has reiterated the grounds taken in the memo and has also vehemently argued that there is violation of Section 42

and 50 of the NDPS Act.

Per contra, Mr. Aseem Sawhney, learned AAG has vehemently argued that the quantity of recovered contraband from the custody of the petitioner

falls within the category of commercial quantity and rigors of Section 37 of the NDPS Act shall apply.

Heard and considered.

From a perusal of the record, it is evident that the 110 kg of Poppy Straw (Bhooki) has been recovered from the petitioner and rigors of Section 37

of the NDPS Act shall apply in the instant case.

At this stage, this Court cannot form an opinion that there are no reasonable grounds that the petitioner is not guilty of an offence regarding which,

the challan is sub-judice before the learned 2nd Additional Session Judge, Jammu.

So far as other ground raised by the petitioner with regard to the non-observance of the procedure is concerned, this Court deliberately has not dealt

the same because of the reason that the charges are yet to be framed and otherwise also the said issues are matter of trial.

Reliance is placed upon the decision of Apex Court in case titled “Superintendent, Narcotics Control Bureau versus R. Paulsamy†reported in

2000AIR 3661(SC), the relevant paragraph 6 is reproduced as under:

In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court

is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on

bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by

the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the

factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not

merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities

mentioned in those two sections.

In view of all what has been discussed above, this bail application is without merit and is, accordingly, dismissed.