Toufeeq Ahmad Sheikh vs Ut Of Jk Th. Sho P/S Bandipora
2021 Latest Caselaw 327 j&K/2

                       IN THE HIGH C0URT 0F JAMMU AND KASHMIR
                                     AT SRINAGAR

                                                Bail App. No. 80/2020
                                                 CrlM No. 528/2020

                                                                Reserved on 09.03.2021
                                                               Pronounced on 18.03.2021

           Toufeeq Ahmad Sheikh                                                 ...Petitioner(s)

                         Through: Mr. Yasir Shameem Mir, Adv.

                                                         Vs.

           UT of JK th. SHO P/S Bandipora                                      ...Respondent(s)

                         Through: Mr. Hakeem Amaan Ali, Dy. AG

           Coram:              HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                JUDGMENT

1. The petitioner is seeking bail in case FIR No. 42/2019 under Section 8/21 & 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 and 48 of Excise Act on the following grounds:

(a) That the petitioner is 22 years old, having three children and old aged parents to support and is not involved in any criminal case.

(b) That the recovery has been concocted by the police and the police has not followed the procedure prescribed under Section 50 of the NDPS Act.

(c) That because all the witnesses are official witnesses and no independent witness has been associated by the police at the time of search.

(d) That the petitioner has been in custody since April 2019 and despite passage of more than 1 ½ years, the prosecution has been able to examine only five witnesses.

(e) That the petitioner is suffering from Ch. Constipation with bleeding PR. And was diagnosed to be having Grade-2 internal Hemorrhoids and was advised SIGMOIDOSCOPY.

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(f) That the procedure prescribed under the NDPS Act has been grossly violated.

2. Response stands filed by the respondents in which it has been stated that on 30th April 2019 Police Station Bandipora received a docket from Incharge, Naka Party Nusoo/Papchan Bandipora to the extent that two persons were moving in suspicious condition near Papchan Bridge and on seeing the Police party, they tried to fled away from the spot but were chased and apprehended on spot by the Naka Party. During question they disclosed their names as Towfeeq Ahmad Sheikh S/o Habibullah Sheikh R/o Ward No. 5 Bandipora & Mehraj Din Bhat S/o Mohammad Maqbool Bhat R/o Ward No 2 Bandipora. On search of petitioner, 5 bottles of Rum, (Old Adventure) and 15 Bottles of Codeine Phosphate (Apdyle-T) and 10 Strips of Spasmo-Proxyvon containing 240 tablets were recovered. Likewise, on search of the other accused namely Mehraj Din Bhat, 4 Bottles of Rum (Old Adventure) and 13 Bottles of Codeine Phosphate (Apdyle-T) 6 Strips of Spasmo-Proxyvon containing 144 tablets were recovered from him. On receipt on the said docket, FIR No. 42/2019 under Section 8/21-22 NDPS Act and Section 48 of Excise Act was registered in the Police Station Bandipora and after the completion of the investigation, Challan No. 26/2019 was filed before the competent court of law on 24th July 2019. It is further stated in the objections that given the volume of seized contraband, the petitioner has to come out of the rigor of Section 37 NDPS Act, hence is not entitled to bail as a matter of right and also it has been stated that offence committed by the petitioner poses a serious threat to the health and welfare of the people especially younger generation in the State/Nation. On these grounds, respondents have prayed for the dismissal of the bail application.

3. Learned counsel for the petitioner has vehemently argued that the trial has remained pending for quite a long time and the prosecution has not been able to conclude its evidence, so the

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I attest to the accuracy and integrity of this document petitioner is entitled to bail and he has reiterated the grounds taken in the bail application. He has relied upon the judgement of the Co- ordinate Bench in case Ghulam Mohammad Mir vs. Union Territory of JK & Ors. in B.A. No. 13/2020 decided on 16th February 2021.

4. Per contra, Mr. Hakeem Aman Ali, learned Dy. AG has argued that the charges against the petitioner have been framed and the prosecution has led its evidence before the trial court and only few witnesses are remaining and because of Covid-19 Pandemic, the prosecution has not been able to conclude its evidence.

5. Heard and considered.

6. It is evident that the challan for commission of offence under Section 8/21 & 22 of NDPS Act and 48 of Excise Act is pending before the Court of Principal District and Sessions Judge Bandipora and on 26th August 2019, the charges for the commission of offence under Section 8/21 & 22 of NDPS Act and 48 of Excise Act were framed against the petitioner and also against the other accused.

7. The record was also summoned and from the record it is evident that six witnesses have been examined by the prosecution. Earlier, also an application for grant of bail was filed but the learned trial court vide order dated 5th November 2019 dismissed the said bail application and thereafter another bail application was filed on the health grounds, the same too was dismissed by the learned trial court vide order dated 24th July 2020. It is evident that the quantity of contraband that has been recovered from the petitioner falls within the category of commercial quantity so the rigor of Section 37 of NDPS Act shall apply in the instant case.

8. This Court has perused the statement of the prosecution witnesses and from the statement of the prosecution witnesses, this court is unable to form an opinion at this stage that the petitioner is not guilty of committing an offence for which he has been charged and

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I attest to the accuracy and integrity of this document also that the petitioner will not commit such type of offences in the near future, if released on bail. This court has deliberately not evaluated the evidence lead by the prosecution lest it shall prejudice either of the parties during the trial of the case.

9. The contention of the learned counsel for the petitioner that that procedure as prescribed under the NDPS Act has not been followed cannot be considered at this stage and that is to be appreciated by the trial court while finally adjudicating the challan.

10.The judgment relied upon by the learned counsel for the petitioner is not applicable in the present facts and circumstances of the case as the quantity of the contraband recovered from the petitioner falls within the category of commercial category.

11.So far as the health condition of the petitioner is concerned, an appropriate direction can be issued to the Superintendent Central Jail concerned for providing necessary medical treatment in view of the ailment suffered by the petitioner.

12.In view of above, no case for grant of bail is made out, as such, the bail application is found to be without any merit and is dismissed accordingly.

13.However, the petitioner shall be provided all the requisite medical treatment by the Superintendent, Central Jail Srinagar and it is expected that the trial court shall expeditiously decide the challan without granting unnecessary adjournments to either of the parties.

(RAJNESH OSWAL) JUDGE SRINAGAR 18.03.2021 Altaf

Whether the order is speaking: Yes

Whether the order is reportable: No

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