Mustaq Ahmad Katoch vs Ut Of J&K
2021 Latest Caselaw 543 j&K

     HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
                         (Through Virtual Mode)

                                           Bail App No.16/2020
                                           CrlM No.1369/2020
                                           CrlM No.1370/2021

                                           Pronounced on:3rd .05.2021.

Mustaq Ahmad Katoch                           .... Petitioner/Applicant(s)

                               Through:- Mr. Ajaz Bhat, Adv.

                         V/s

UT of J&K.                                             .....Respondent(s)

                               Through:- Mr. Jamrodh Singh, Adv.

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                               JUDGMENT

1. FIR No.84/2019 was registered in Police Station Banihal under

section 8/20/29 of NDPS Act, 1985 on the basis of source information

against three persons namely one Parvaiz Ahmad, Mushtaq Ahmad

Katoch and Taqueer Ahmad, all residents of village Panchal, Ukhral

Tehsil Pogal Paristan District Ramban. After laying the trap, Police found

only two persons namely Parvaiz Ahmad and Tauqeer Ahmad. Both were

searched and were found in possession of Charas and were arrested on

20.06.2019.

2. The challan was filed against them in the Court of learned Special

Judge under NDPS Act (Sessions Judge), Ramban. It appears that the

applicant Mushtaq Ahmad Katoch did not accompany them and the

investigating Police Officer also did not ask any of the accused about his

whereabouts. However, a supplementary challan was filed in the court on

13.11.2019 stating that even though FIR No.84/2019 was registered 2 Bail App. 16/2020

against three accused including the applicant but the applicant Mushtaq

Ahmad Katoch managed to escape and has thrown charas on the nearby

Nallah. He was arrested on 05.11.2019. The learned counsel for the

applicant has argued only on some legal points regarding the non-

application of Section 37 of the NDPS Act in the case of the applicant.

This requires reference to Section 37 of the NDPS Act which is

reproduced below:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) Every offence punishable under this Act shall be cognizable.

(b) No person accused of an offence punishable for offences under section 19 or section 24 of section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-

(i) The Public Prosecutors has been given an opportunity to oppose the application for such release, and

(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitation on granting of bail specified in clause (b) of sub-section (1) are in addition ot the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

3. Since the substance involved is narcotic, the punishment for which

is described under section 20 of the Act, as such, this also requires

reference. The Section reads as under :

"20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,--

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-- 1[(i) where such 3 Bail App. 16/2020

contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to sub-clause (b),--

(A) and 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) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(C) and 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 but 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.

4. Thus, the constraints of the offence are cultivation, production,

manufacturing, possession, sale, purchase, use, transport, import, export

or use of cannabis in contravention of the Act or the rules made

thereunder which has been made punishable. All these contraventions are

possible only, if factum of possession is established, which is the main

ingredient of the charge. However, while FIR No.84/2019 was registered

against three accused, only two of them were found in possession of the

narcotic substance. The Investigating Officer appears to have not borne in

mind and though the applicant had also allegedly purchased charas but the

same was not found with him. The other two accused were not asked

about his whereabouts. It is only on 05.11.2019 that he was arrested by 4 Bail App. 16/2020

the Police and nothing was recovered from him. This fact is not disputed

by the prosecution. In fact Mr. Jamrodh Singh, Advocate has filed

objections. The relevant portion of which is reproduced below:

"During the further course of investigation it came to light that on 20.06.2019 Mushtaq Ahmad Katoch along with other two accused persons purchased 03 kgs of charas from one unknown person at Anantnag but when he reached ay Railway Station Banihal on seeing the police party at T Chowk Banihal he fled away from the spot along with 01 kg and 900 grams of cahras and accused person threw the said contraband in nallah at Kaskoot Banihal on the same day. After the conclusion of investigation IT proved offence U/s 8/20/29 NDPS Act 201 RPC against Mushtaq Ahmad Katoch S/o Mahmadoo Katoch R/o Panchal Ukhral District Ramban and a separate supplementary charge sheet no. 100/2019 dated 23.11.2019 was produced against the said accused person before the Hon'ble Session court Ramban for judicial determination."

5. So, it is admitted that no narcotic was recovered from the

possession of the applicant. He has been charged under section 201 of the

Penal Code but the NDPS Act being a self contained Code it is doubtful if

recourse could be made to the Section 201 of the IPC. It is for the first

time been stated that the applicant Mushtaq Ahmad Katoch who had

purchased 01 kg and 900 grams of charas from unknown person of

Anantnag and ran away after he saw the Police party along with the charas

which is stated was, subsequently, thrown in the kaskoot nallah. There is

no reference to the evidence relied by the prosecution except that he has

also been named in the FIR registered on the basis of source information.

6. The applicant had applied for grant of bail by filing application on

01.11.2019 which the trial court i.e. Special Judge rejected vide order

dated 03.01.2020. Para Nos.16 and 17 of the order reads as under:

5 Bail App. 16/2020

"16. In the present case, the allegations against petitioner is that he is involved in the illegal possession of narcotic substance. The police has prima facie proved that the accused was in possession of 1kg 900 grams of charas through illegal means to sell the same to the younger generation on higher prices and make the youth addict of narcotics. I am of the view that possession of charas was definitely for its sale in the market. The sale of charas is very dangerous to the society and a cancer to the young lot of society and spoiled many families. In other way the accused is prima facie found to have been involved in the commission of offence under Session 8/20/29 NDPS Act and 201 RPC Act.

17. It is common knowledge, that in the present situation, the ill-gotten gain from illegal trade of narcotic has become a menace to the society and its youth and caused multifold increase in crime besides financing terrorism foist by the neighboring country to boost the militancy activities in the state of Jammu and Kashmir to destabilize its sovereignty and security."

7. It is, however, admitted by the trial Court in Para 1 of the order that

while the contraband was recovered from Tauqeer Ahmad but nothing

was recovered from the applicant as mentioned in the charge sheet since

he was not arrested on 26.06.2019. The question of recovery does not

arise. Having found so, the trial Court ought to have referred to the

evidence relied by the prosecution but this has not been done.

8. Be that as it may, it is for the trial Court to consider the evidence

while framing the charge which is yet to the framed. This application,

however, deserved to be allowed by reference to para 15 of the Judgment

of the Supreme Court in case titled State of Kerala Vs. Raneef (2011) 1

SCC 784 holding that:

"15 In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several 6 Bail App. 16/2020

years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel `A Tale of Two Cities', who forgot his profession and even his name in the Bastille."

9. In view of the aforesaid, this application is allowed. The applicant

is admitted to bail on furnishing personal bond of Rs.1.00 lakh (Rupees

One lakh only/-) with one surety of the like amount to the satisfaction of

the trial Court with the conditions that (i) the applicant shall appear before

the trial Court on each and every date of hearing; (ii) the applicant shall

not leave the territorial limits of UT of J&K without prior permission of

the trial Court and (iii) the applicant shall not tamper or influence the

prosecution witnesses or evidence in any manner during trial.

10. Disposed of alongwith connected applications.

(Sindhu Sharma) Judge JAMMU 3rd .05.2021 Eva

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