Fayaz Ahmed Bhat vs Union Territory Of J&K
2021 Latest Caselaw 812 j&K

                                                                       Suppl- 1 List
                                                                        S. No. J2


     THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                 Pronounced on : 04.08.2021

                                                 Bail Application No. 44/2021
                                                   I




Fayaz Ahmed Bhat                                            ......Applicant

                       Through :- Mr.O.P.Thakur, Sr. Advocate with
                                  Mr. R.K.S.Thakur, Advocate.

                                       v/s

Union Territory of J&K                                        ......Respondent

                        Through :- Mr. Jamrodh Singh, GA

Coram:      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :
                                    JUDGMENT

1. The applicant-accused Fayaz Ahmad Bhat through the medium of

present application seeks bail in the challan pending before the court of

learned Principal Sessions Judge, Ramban. The charges stand framed

against the accused under Section 8/15 NDPS Act. The accused is

alleged to have been apprehended on 03.07.2018 with three bags of

poppy straw weighing 63 kgs at naka point Shan Palace, Ramban

during checking. The contraband was recovered from the car which the

applicant was driving at the time of checking of the vehicle.

2. It is suffice to mention herein that the accused had filed two bail

applications earlier before the trial court and both came to be

dismissed. As the present petition is for grant of bail, this court will not 2 Bail Application No. 44/2021

critically analyze the orders of rejection in the bail applications filed

before the trial court.

3. The status report/objections to the application have been filed wherein

the respondent has opposed the bail plea of the accused.

4. Mr. O.P.Thakur, Learned Senior Advocate appearing for the accused,

has referred to the statements of the prosecution witnesses that have so

far been recorded in the challan in order to convince the court that

there are sufficient grounds to grant bail to the accused.

5. Mr. Jamrodh Singh, Learned Government Advocate appearing for the

UT, has opposed the bail on the ground that the accused is involved in

a serious offence. The evidence that has come on record so far does

connect the accused with the commission of offence. The statements of

some of the prosecution witnesses are yet to be recorded and therefore

the application cannot be allowed.

6. The court while dealing with the bail application is not required to

analyze in detail the statements of the prosecution witnesses that have

so far been recorded in the case nor the credibility of the statements of

the witnesses is to be commented upon which may otherwise cause

bias to the prosecution or defense. However, the court at the same time

is not debarred from looking into the evidence on a limited scope qua

the application in hand.

7. The learned senior counsel for the applicant while referring to the

statement of some of the witnesses has impressed upon the court that

their version in the court do not inspire any confidence and are

contrary to each other which belie the case of the prosecution from its 3 Bail Application No. 44/2021

very inception. The argument raised on the basis of the prosecution

evidence that has so far been recorded in the challan is with regard to

not associating of forest employees or other independent witnesses

who were available on spot at the time of the recovery of alleged

narcotics, the alleged preparation of seizure memo in the police station

and that all the witnesses mentioned in the seizure memo have not been

kept as witnesses in the challan. The statements of PWs-Swami Raj,

Angrez Singh and Mohd. Ramzan among others have been particularly

mentioned by the learned counsel for the accused in this regard. The

above mentioned arguments raised on behalf of the accused vis-à-vis

the statements recorded of the prosecution witnesses, in the opinion of

this Court, do not apparently make out a case for bail of the accused.

8. The learned counsel for the accused has also emphatically referred to

the statements of two prosecution witnesses, namely, Javed Iqbal and

Abdul Jabbar in order to seek bail of the accused. PW-Javed Iqbal is

incharge malkhana and PW-Abdul Jabbar is Naib Tehsildar who had

re-sealed the packets which were brought before him during the course

of investigation. The precise submission of the learned counsel is that

PW-Javed Iqbal in his statement has mentioned the date of deposit of

the articles with him which is much prior to the date of occurrence

which is stated to be of 03.07.2018. Similarly, PW-Abdul Jabbar has

deposed of re-sealing of the articles on the date prior to the date of

occurrence. The statements of both the witnesses go to the root of the

prosecution case and clearly make out that the accused was framed in

the case by the police.

4 Bail Application No. 44/2021

9. Learned counsel for the respondent has submitted that the statements

of these two witnesses cannot be read in isolation and it is the overall

evidence that comes on record which ultimately decides the fate of the

case. The prosecution case is based upon oral as well as documentary

evidence. The prosecution evidence is still going on and the

documentary evidence can be proved by the prosecution. The plea

taken by the learned counsel for the accused is in any case premature.

10. A cursory look at the statement of PW-Javed Iqbal reveals that he

deposes of his being posted as malkhana incharge of Police Station,

Ramban and that three bags of bhooki were given to him and which

were kept in malkhana. The entries with regard to the articles are

mentioned in the malkhana register. During cross-examination, he has

stated that the packets were deposited on 26.03.2018. Similarly, PW-

Abdul Jabbar has recorded in his statement before the court that on

26.03.2018 he was posted as Naib Tehsildar, Ramban as Executive

Magistrate, Ist Class and on that day the packets were produced before

him for re-sealing by the police personnel of which he has made

mention in the statement. The witness has also stated about the

certificate issued by him in this regard which is exhibited as

ExtP-11. In cross-examination he has stated that he returned the

articles on 26.03.2018 after re-sealing the same.

11. The date 26.03.2018 mentioned by the aforesaid prosecution witnesses

during their respective statements in the court is the mainstay of the

argument of the accused for seeking bail in the application. It is not in

dispute that the statements of some of the witnesses are yet to be 5 Bail Application No. 44/2021

recorded in the challan produced against the accused. It is brought to

the notice of the court that PWs-Javed Iqbal and Abdul Jabbar are

witnesses to the documents allegedly prepared by them during the

course of investigation and the documents are filed with the challan.

The certificate given by PW-Abdul Jabbar, Naib Tehsildar, is on the

file and is exhibited as ExtP-11. PW-Javed Iqbal is supposedly witness

to the receiving of articles, their custody and the recording of entry in

the malkhana register. The photocopy of relevant extract of malkhana

register is annexed with the challan. The court finds weight in the

argument of the learned counsel for the respondent that this court at

this stage cannot make final comment on the argument raised on behalf

of the accused qua the date of 26.03.2018 as the prosecution has every

right to produce the evidence to prove the document during the

pendency of the challan. In what manner this document will be dealt

with by the prosecution cannot be anticipated by the court. The court is

of the view that the emphasis laid by the learned senior counsel for the

accused that mention of the date 26.03.2018 in the statements of the

two above mentioned prosecution witnesses makes out at this stage

that the prosecution has set up a false case against the accused and

therefore the accused should be granted bail cannot be accepted.

12. The rigors of Section 37 apply in the present case as the alleged

narcotics substance seized from the accused is commercial quantity.

The accused cannot seek bail unless he is in a position to demonstrate

that the case set up by the prosecution against the accused appears to

be false and there is reasonable ground to disbelieve the prosecution 6 Bail Application No. 44/2021

version. The court is not convinced that the applicant has been able to

wriggle out of the rigors of Section 37 of NDPS Act on the basis of the

prosecution evidence that as so far come on record.

13. In the light of the above discussion, the Court does not find merit in the

application for grant of bail in favour of the applicant-accused. The

application is, accordingly, dismissed. Any observation made in the

order is indeed confined to the disposal of the present application.

14. Disposed of.

(Puneet Gupta) Judge Jammu 04.08.2021 Pawan Chopra

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

PAWAN CHOPRA 2021.08.05 10:18 I attest to the accuracy and integrity of this document