Jammu & Kashmir High Court
Bharat Bhushan vs Union Territory Of J&K And Others on 4 June, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
Pronounced on: 04.06.2021
CrlM No. 150/2020
CrlM No. 311/2020
In
Crl A (D) No. 02/2020
I
Bharat Bhushan .....Petitioner(s)
Through :- Mr. Sunil Sethi, Sr. Advocate with
Ms. Veenu Gupta, Advocate.
v/s
Union Territory of J&K and others ......Respondent(s)
Through :- Mr. Aseem Sawhney, AAG
Coram:
::: : HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
CrlM No. 150/2020
1. The appellant along with co-accused Aaqib Ahmed Mir and
Ghulam Nabi Bhat stands convicted by the Court of learned Additional
Sessions Judge, Jammu for the offences under Section 8/20/29 NDPS Act.
The trial court vide order dated 01.01.2020 sentenced all the accused to
undergo rigorous imprisonment for a period of 12 years and a fine of Rs.
1,00,000/- and in case of failure to deposit the amount the accused to further
undergo six months rigorous imprisonment.
2. The present appellant-Bharat Bhushan through the present
application seeks suspension of sentence and grant of bail on the grounds
mentioned in the appeal and the application.
3. The objections to the application have not been filed. However,
learned AAG has argued the application.
4. Before proceeding further, it may be profitable to state factual
aspects of the case as projected by the prosecution against the accused before
the trial court. The occurrence is stated to be of night hours of 29.08.2016
near Bamyal Morh, when the appellant, Bharat Bhushan along with the co-
accused in the challan namely Aaqib Ahmed Mir and Ghulam Nabi Bhat is
stated to have been apprehended as they were engaged in transaction with
regard to the narcotic substance Charas. The appellant was stated to be Auto
Driver of vehicle bearing registration No. JK02BL-9621 and the co-accused
were stated to be occupants of car bearing registration No. JK13A-8481.
Seven packets containing charas were alleged to be found during checking.
The F.I.R No. 175/2016 registered with police station Nagrota for offences
under Sections 8/20/29 NDPS Act resulted into presentation of challan
against the accused for the aforesaid offences.
5. The learned senior counsel appearing on behalf of the appellant
herein has submitted that the judgment is having legal infirmities and cannot
stand the test of law.
6. Learned AAG has submitted that the respondent had proved the
case against the appellant beyond shadow of doubt. The appellant has been
sentenced under the provisions of NDPS Act and the appellant has no case to
wriggle out of the provisions of section 37 NDPS Act which is mandatory
requirement before the appellant can seek relief in the application.
7. One of the arguments raised on behalf of the appellant is that the
alleged occurrence as made out by the prosecution through challan and the
evidence is not proved, more so, when the evidence of defence is also taken
into consideration. Learned AAG has submitted that the argument has no
force when the evidence of the prosecution is taken into consideration and the
trial Court has by elaborate reasoning negated this contention of the
appellant. So far as this aspect is concerned, the court would not like to
analyze this aspect in detail while dealing with the present application though
apparently the court is not convinced that the argument raised by the learned
counsel for the appellant in this regard is ground to grant relief to the
appellant in the application.
8. The other point taken by the learned counsel for the appellant is
regarding the safe custody of the article, allegedly seized during the course of
occurrence. Learned counsel for the appellant has taken the
Court through the statements of prosecution witnesses Mumtaz Ahmed and
Pawan Abrol in order to agitate that the safe custody of the article was not
proved and was fatal for the prosecution.
9. The article which was seized on 29.08.2016 reached the FSL on
06.09.2016 with a letter/endorsement dated 05.09.2016 of SDPO Nagrota
through ASI Jatinder Rakwal of Police Station, Nagrota as per the statement
of PW Pawan Abrol from FSL Jammu. PW Mumtaz Ahmed was posted as
Muharir in Police Station, Nagrota and has deposed regarding the custody of
the article seized during the course of occurrence and its movement from the
malkhana on the dates as given by him in the statement. The counsel for the
appellant has argued that the very statement of this witness itself makes out
that the prosecution failed to prove the safe custody of the charas right from
its seizure till it was received by the FSL and thus the tampering of the
sample of the narcotic substance cannot be ruled out. This circumstance is
itself sufficient to grant bail to the appellant. Learned AAG has argued that
the trial Court has duly taken into consideration the aspect of safe custody of
the article in its judgment and no fault can be found in the same.
10. The aspect of safe custody of the article during the course of
investigation is dealt at length in the judgment impugned in the present
appeal. The argument raised on behalf of the appellant on this facet of the
matter does not apparently convince the court for allowing the application in
hand on that basis. Indeed, the same is subject to final determination when
the appeal is heard on merits.
11. It may be suffice to mention herein that the recovery of Charas
is held to be of commercial quantity by the trial Court. It cannot be denied
that the appellant has to come out of the rigors of Section 37 of the NDPS
Act before he can seek relief in the application.
12. In Sheru Vs. Narcotics Control Bureau (Criminal Appeal Nos.
585-586 of 2020), decided on 11.09.2020, the Hon'ble Apex Court held as
under :-
"We have given a thought to the matter and there is no
doubt that the rigors of Section 37 would have to be met
before the sentence of a convict is suspended and bail
granted and mere passage of time cannot be a reason for
the same."
13. The Court is not convinced that the appellant has been able to
meet the rigors of Section 37 of NDPS Act so as to get relief in the present
application.
14. The nature of offence can never be lost sight of by the Court
while deciding the prayer for suspension of the sentence and grant of bail to
the convict. The appellant cannot seek bail in such like cases as a matter of
right keeping in view the nature of the offence and the punishment which is
prescribed under the provisions of the Act.
15. The appellant having failed to obtain relief in the application on
merits could still plead for his release on bail on account of his long
incarceration but this circumstance also does not favour the appellant in a
case like the present one as is held by the Apex Court in case of Sheru
(supra). In any case, the appellant who has been sentenced to suffer rigorous
imprisonment for a period of 12 years has undergone only a meager part of
about two years till date as per the nominal roll submitted by Superintendent
District Jail, Jammu.
16. Keeping in view the discussion made above, the court does not
find merit in the application, filed for suspension of sentence and grant of
bail. Needless to mention, any observation made in the order is confined to
the disposal of the present application and shall have no bearing on the merits
of the main appeal. The application is dismissed.
17. The main appeal shall come up for hearing on its own turn.
(Puneet Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu
04.06.2021
Shammi
MUNEESH SHARMA
2021.06.07 13:43
I attest to the accuracy and
integrity of this document
