Jammu & Kashmir High Court

Angrez Singh And Others vs Union Territory Of J&K on 1 March, 2021

          IN THE HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU



                                           Bail App No.03/2021

                                          Reserved on: 24.02.2021
                                         Pronounced on: 01 .03.2021


Angrez Singh and others                         ... Petitioner(s)

                  Through: - Mr. Sandeep Singh Advocate

Vs.

Union Territory of J&K                         ...Respondent(s)

                  Through: - Mr. Jamrodh Singh, GA


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



                           JUDGMENT

1 As per the prosecution case, on 26.04.2020, the Police Station,

Arnas received an information from reliable sources that an unknown

person has cultivated poppy crop in his land measuring around 5/6

marlas at village Dharan, District Reasi. On the basis of the said

information, FIR No. 28/2020 for offences under Sections 8/18/29 of

NDPS Act was registered at Police Station, Arnas.

2 During investigation, the I/O along with Tehsildar visited the

spot and found that the petitioners herein have cultivated the poppy

crop on their land. 2.2 kg of poppy crop was found to have been

cultivated by petitioner Angrez Singh, 2.6 kg by petitioner Kuldeep

Singh, 2.9 kg by petitioner Narinder Singh and 2.7 kg by petitioner

Jasbir Singh. The I/O prepared the samples on the spot and seizure

memos were prepared in the presence of Executive Magistrate. The

samples were sent to FSL Jammu for chemical analysis and the

statements under Section 161 were also recorded by the I/O. The

petitioners were arrested on 07.9.2020. After obtaining report from the

FSL, Jammu which confirmed the existence of narcotic material, the

investigation was completed and the challan presented in the Court of

learned Sessions Judge, Reasi (hereinafter referred to as the 'trial

Court'). On 15th of October, 2020, all the petitioners herein moved

applications before the trial Court for grant of bail. The trial Court

though, in principle, agreed that the contraband recovered from the

possession of the petitioners falls within the category of intermediate

quantity, yet, having regard to the gravity of the offence, severity of

punishment prescribed and the impact on the society etc., declined the

bail. The applications moved by the petitioners were, thus, rejected by

the trial Court vide its common order dated 08.12.2020.

3 Feeling dissatisfied and aggrieved by the order of the trial Court,

fresh bail application came to be filed by the petitioners before this

Court. The bail is claimed by the petitioners primarily on the ground

that they are incarceration since 07.09.2020 and that the investigation

has since been completed and the challan presented before the trial

Court and, as such, the petitioners deserve to be enlarged on bail. It is

submitted that the object of bail is to secure the attendance of the

accused in the trial and unless there is material on record to indicate

that the petitioner/accused, if enlarged on bail, will not appear to take

their trial, it should not be normally refused. Learned counsel for the

petitioners further argues that it is now well settled that the gravity of

offence alone cannot be a decisive ground to deny bail and the Court,

while considering the bail plea, must bear in mind that an accused is

presumed to be innocent until proven guilty and that the bail is rule and

jail an exception.

4 The bail plea of the petitioners is resisted by the respondents

who, in their objections, have, while narrating the prosecution story,

pleaded that the petitioners are involved in heinous offences which

carry punishment up to 10 years and, therefore, cannot be enlarged on

bail, in that, there is every apprehension that they, after coming out of

the jail on bail, will tamper with the prosecution evidence by

influencing the witnesses.

5 Having heard learned counsel for the parties and perused the

record, it is necessary to first set out Section 18 of NDPS Act which

reads as under:

18. Punishment for contravention in relation to opium poppy and opium.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable;

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees;and

(c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees".

6 From reading of Section 18 of NDPS Act, it is evident that

cultivation of opium poppy is an offence and depending upon the

quantity of the contraband recovered, following punishments have been

provided.

(i) Where the contravention involves small quantity, the punishment prescribed is rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or both;

(ii) where the contravention involves commercial quantity, the punishment prescribed is rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. It further provides that the Court may, for the reasons to be recorded, impose a fine exceeding two lakh rupees as well; and

(iii) However, in any other case of contravention, the accused guilty of offence would be punished with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.

7 Learned counsel for the petitioners submits that the case of the

applicants falls in the third category. He submits that in the case of

cultivation of opium poppy, it is difficult to work out exactly as to

whether the produce would fall within small quantity or in commercial

quantity. Referring to Note 3 to the Notification specifying 'small

quantity' and 'commercial quantity' of narcotic drags and psychotropic

substances, learned counsel argues that the case of the petitioners falls

in Section 18 (c) of NDPS Act and, therefore, it should be treated akin

to the case involving intermediate quantity.

8 The argument of learned counsel for the petitioners is not

without any substance. In the challan, the respondents have shown the

quantity of contraband cultivated by the each of the petitioners, but

how such quantity has been worked out is not forthcoming. In these

circumstances, it is difficult at this stage to reach at any conclusion with

regard to the quantity of opium actually cultivated by each of the

petitioners individually. I, therefore, take the case of the petitioners

falling under Section 18 (c) of NDPS Act for the purpose of this bail

application.

9 Viewed thus, when the investigation in the matter has since been

completed and the challan presented in the competent Court of law and

the petitioners have already suffered incarceration of more than six

months, it would serve no purpose to keep them in the jail indefinitely.

After all, the purpose of arrest of the accused in a case is not to

punishment him without trial, but is only to ensure fair investigation

without giving any opportunity to the accused to tamper or influence

the prosecution witnesses. We cannot ignore the golden principle of

criminal jurisprudence that the accused is presumed to be an innocent

until proven guilty and the guilt of the accused can only be established

in a trial, to be held by an impartial competent Court of law. Long

incarceration of accused during trial which, in the prevalent criminal

justice system, takes undue time to conclude, would be tantamount to

imposing pre-trial punishment on the accused. The prosecution has not

placed on record any material to indicate that the accused are the

persons of such character that in case they are enlarged on bail, they

will thwart the course of justice by tampering with the prosecution

evidence by influencing the witnesses.

10 It is true that the gravity of the offence and the severity of

punishment prescribed are the relevant considerations to be borne in

mind while considering bail application, but there are other factors

which are equally important and cannot be ignored. This is now widely

accepted principle of our criminal jurisprudence that the grant of bail is

a rule and jail an exception. When the case of the petitioners is

examined in the light of aforesaid principles, this Court finds no reason

or justification to deny the concession of bail to the petitioners at this

stage, more so, when rigors of section 37 of NDPS Act are not

attracted. The reasoning given by the learned trial Court while rejecting

the bail application of the petitioners that the offences alleged to have

been committed by them are serious in nature and have deleterious

effect on the society, cannot be a sole ground for rejection of bail

application, more particularly, when the allegations against the

petitioners are yet to be established. The trial Court has not taken note

of the fact that the petitioners are in jail for the last more than six

months and that the purpose for which they were arrested has been

accomplished with the presentation of the challan.

11 For the foregoing reasons, I am inclined to extend the

concession of bail to all the petitioners. Accordingly, this application is

allowed and the petitioners are admitted to bail subject to the following

conditions:

(i) That they shall furnish personal bonds in the amount of Rs.50,000/ each with one surety of the like amount to the satisfaction of the learned trial court;