Sajjad Ahmed vs Union Territory Of J&K And Others
2021 Latest Caselaw 202 j&K

                                     =h475




             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                             Reserved on : 23.02.2021
                                             Pronounced on:26.02.2021

                                              Bail App No.276/2020
                                              CrlM Nos.1849 & 1850 of 2020


Sajjad Ahmed                                                    ...Applicant(s)


                          Through:- Mr. Atul Raina, Advocate
      V/s

Union Territory of J&K and others                            ...Respondent(s)
                         Through:- Mr. Jamrodh Singh, GA


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                 JUDGMENT

1. The instant application filed by the applicant under Section

439 of the Code of Criminal Procedure is for grant of bail to the applicant,

arrested in FIR No.137/2020 registered for offences under Sections 8/20 of

Narcotics Psychotropic Substances Act, 1988 [ 'NDPS Act'] at Police

Station, Katra.

2. As the prosecution story goes, on 02.09.2020, ASI Murad Ali,

Incharge Police Post, Balani submitted a docket to Police Station, Katra

that he along with other police officials were conducting checking/frisking

duty at the Nakka PCP Balani at about 1710 hrs, two persons came on a

motorcycle bearing registration No.JK02BD-8234 from Domail and were

proceeding towards Reasi. When the duo reached the check-post, they tried

to flee away. The police party chased and over powered them. During

preliminary enquiry, they disclosed their names as Mohd. Altaf and Sajad

Ahmed (applicant herein). During personal search, charas weighing 950

gms was recovered from the possession of applicant Sajad Ahmed and 495

gms from Mohd. Altaf. The investigation was entrusted to SI Suman Singh,

who, during investigation visited the spot, prepared the site plan,

seized/sealed the contraband, out of which 50 gms were taken out as

sample and sent to FSL, Jammu for chemical analysis and expert opinion.

The statements of the witnesses were recorded under Section 161 Cr.P.C.

The report from the FSL was received and after completion of all legal

formalities, final report in the case was presented before the competent

Court of law on 02.11.2020. The other accused, namely, Mohd. Altaf, who

was found in possession of 495 gms of charas, was found to be juvenile

and, accordingly, separate proceedings were initiated before the Juvenile

Justice Board, Reasi.

3. On the presentation of challan, the applicant, who was arrested

on 02.09.2020 moved an application for grant of bail before the Principal

Sessions Judge, Reasi ['the Trial Court'] and claimed concession of bail

primarily on the ground that the applicant was allegedly found in

possession of contraband weighing 950 gms approximately, which was an

intermediate quantity, therefore, the rigors of Section 37 of NDPS Act were

not applicable and the applicant was entitled to be considered for bail on

the touchstone of principles governing grant of bail laid down under

Section 437 Cr.P.C. The Trial Court considered the rival contentions and

came to the conclusion that having regard to the heinousness of the

offence, the applicant is involved in and its impact on the society, it was

not advisable to let him off on bail and that there was serious apprehension

of the applicant tampering with the evidence by influencing the prosecution

witnesses. The application was, thus, dismissed by the Trial Court vide its

order dated 19.12.2020.

4. Feeling aggrieved and in a bid to secure bail from the higher

forum, the applicant has moved the instant application on the same

grounds, as had been urged by him before the Trial Court.

5. The primary thrust of the arguments of learned counsel

appearing for the applicant is that since the applicant was found in

possession of the contraband (charas) weighing 950 gms, which is an

intermediate quantity, as such, the rigors of Section 37 NDPS Act are not

attracted. He having been in custody since 02.09.2020 is now entitled to

bail, when the investigation is complete and the challan stands presented in

the competent Court of law. It is, thus, urged that with the completion of

investigation and presentation of challan, the custody of the applicant is no

more required and keeping the applicant in custody even after presentation

of challan would be tantamount to inflicting pre-trial punishment on him.

6. The respondents have filed their objections. Apart from

reiterating the prosecution story, it has been contended that the offence

committed by the applicant is heinous and serious in nature and, therefore,

the applicant does not deserve any leniency of bail from this Court. The

offence committed by the applicant is against the society at large and

entails severe punishment and, therefore, it is necessary to keep the

applicant in jail during the course of trial, so that the confidence of the

general public in administration of justice is restored.

7. Having heard learned counsel for the parties and perused the

record, I am of the view that the applicant after having been in custody of

the Police for more than five months deserves to be enlarged on bail.

8. The learned Trial Court has rejected the bail application being

influenced primarily by the considerations, which may not be, too, germane

for the disposal of the bail application. Undoubtedly, the menace of illegal

trafficking in narcotics drugs and psychotropic substances has not only

eaten the vitals of Indian economy but has destroyed the younger

generation. The culprits, who are involved in transportation and

distribution of this poison, are required to be dealt with iron hands. With a

view to bring the real culprits to book, it is necessary that the investigating

agency as also the prosecution perform its duties diligently, professionally

and with utmost devotion, which we see missing in majority of cases. The

investigation as well as the prosecution is conducted in most unprofessional

manner, as a result whereof, many accused go scot-free after facing trial.

9. Be that as it may, these are not the considerations, which

should prevail with the Court at the time of consideration of bail

application(s). We must remember the golden principle of criminal

jurisprudence, which is globally accepted, that an accused is presumed to

be innocent until proven guilt. The accused can be proved guilty only in a

trial conducted by a competent Court of Law. Arrest and detention of the

accused during investigation or trial is not aimed at punishing the accused

without trial or before the verdict of his innocence or guilt, but is only to

facilitate the proper investigation in the matter and to ensure that the trial is

not influenced or hampered by the acts and omissions of the accused.

10. The offences under NDPS Act are viewed as heinous, grave

and serious offences and they have been classified as per the quantity of the

contraband found 'in possession of the accused. With regard to the

commercial quantity, Section 37 of NDPS Act lays down rigorous

conditions for grant of bail. However, with regard to intermediate and

small quantity the bail application is required to be considered on the

touchstone of the principles governing grant of bail under Section 437

Cr.P.C. At this juncture, I am reminded of the off-repeated principle of

criminal law that is: "bail is rule and jail exception".

11. When, facts of the instant case are examined on the touchstone

of the legal principles governing grant of bail, it is seen that the applicant

has been admittedly found to be in possession of the contraband of

intermediate quantity. It is true that in cases where the accused is accused

of possessing contraband of small or intermediate quantity, he is not

entitled to bail as a matter of right. However, in the instant case, the

applicant has been in the custody of the respondents since 02.09.2020. The

investigation in the matter has been completed and the charge-sheet

presented before the competent Court of law. The respondents do not

require the applicant for the purpose of investigation anymore. The

prosecution has not even voiced its apprehension that the applicant, if

released on bail, may temper with or influence the prosecution witnesses.

Simply because the offence allegedly committed by the applicant is serious

in nature and has the potential of impacting the society at large cannot be a

ground to refuse bail to the applicant. The respondents have not placed on

record any material to indicate that the applicant is a repeat offender and

has previously also committed the similar offence(s).

12. Learned counsel for the applicant has brought to my notice the

judgments of this Court, wherein under similar set of circumstances, this

Court has extended the benefit of concession of bail to the applicant(s)

accused of being in possession of the contraband falling under intermediate

quantity (Bail App No.168/2020 titled Raj Kumar v. UT of J&K, decided on

12.11.2020 and Bail App No.48/2020 titled Liaqat Hussain and others v.

UT of J&K, decided on 25.08.2020).

13. In view of the aforesaid, this application is allowed and the

applicant is admitted to bail subject to the following conditions:-

i) That the applicant shall furnish personal bond to the tune of

Rs.50,000/- with one surety of the like amount to the satisfaction of

the Trial Court.

ii) That the applicant shall submit an undertaking that he shall regularly

appear before the Trial Court on each and every date of hearing.

iii) That the applicant shall not leave the territorial limits of the UT of

J&K without prior permission of the learned Trial Court.

iv) That the applicant shall not temper with or influence the prosecution

witnesses or evidence in any manner during the trial.

Let a copy of this order be provided to learned counsel for the

applicant and one copy be sent to the learned Trial Court.

(Sanjeev Kumar) Judge JAMMU.

26.02.2021 Vinod.

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

VINOD KUMAR 2021.03.01 11:09 I attest to the accuracy and integrity of this document