Firdous Ahmad Wani vs Ut Of J&K Through Sho P/S Sumbal
2021 Latest Caselaw 556 j&K/2

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                        (Through Video Conferencing)


                                               Pronounced On: 18.05.2021.

                                                       Bail App No. 18/2021


Firdous Ahmad Wani
                                                                Petitioner (s)
                                Through: -
                 Mr. Peer Aijaz Rasool Shah, Advocate.
                                    V/s
UT of J&K through SHO P/S Sumbal
                                                           .....Respondent(s)
                                Through: -
                     Mr. Hakeem Aman Ali, Dy.AG.
CORAM:
       Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
                             JUDGEMENT

1. The instant bail application has been filed by the petitioner for seeking

bail in case FIR No. 173/2019 for commission of offences punishable

under Sections 8/20 and 29 NDPS Act, registered at Police Station,

Sumbal.

2. According to the prosecution version, on 03.11.2019 Police Station

Sumbal, received a docket from ASI Nazir Ahmad No. 71/BPR

incharge Naka Party Wangipora revealing that on 03.11.219 at 07:45

hours during vehicle checking one Scooty bearing registration No.

JK15-7696 being driven by one person along with a passenger was

stopped for checking in routine and that the riders tried to flee from

the spot and upon being chased came to be apprehended. Upon

questioning the said persons disclosed their names as Mohammad

Shafi Rather S/o Ghulam Hassan Rather R/o Hilalabad Nesbal and

Bail App No. 18/2021

Jahangir Ahmad Rather S/o Zahoor Ahmad Rather R/o Arampora

Sumbal and on being searched were found carrying two nylon bags

containing Cannabis straw like substances approximately 17 Kgs for

selling the same amongst youth. Upon receipt of the docket, the FIR

supra is stated to have been registered and investigation set into

motion, whereupon seizure memo is stated to have been prepared in

presence of SDPO Sumbal and statements of material witnesses

recorded establishing commission of offences in question by the

accused persons and during their questioning are stated to have

disclosed that the substances in question had been purchased/taken by

them from one Firdous Ahmad Wani S/o Ghulam Hassan Wani

(petitioner herein) and Lateef Ahmad Wani S/o Abdul Samad, both

residents of Inderkoot Sumbal and upon effecting search in the house

of the petitioner, one Nylon bag containing 11.80 Kgs of Bhung straw

along with maize husk 06 Nos. carrying 100 grams like substances of

Charas were recovered and petitioner was found involved for

commission of offences under Section 8/20 NDPS Act. The samples

of the alleged drugs are stated to have been forwarded to FSL Srinagar

for obtaining expert opinion, upon receipt of which same had been

found to be narcotic substances. The petitioner is stated to be involved

in illegal trade of drugs posing serious threat to the youth.

3. The petitioner herein in the petition on the other side states to have

been falsely implicated in the FIR in question and arrested during a

raid at his house upon a confessional statement of co-accused persons.

4. It is being stated that the whole story of prosecution is concocted and

fabricated and no recovery whatsoever has been made from the person

Bail App No. 18/2021

of the petitioner though the recovery of the alleged contraband is

stated to have been recovered from his house yet the petitioner claims

to be innocent and law abiding citizen having not committed any

offence whatsoever.

5. It is being stated that the prosecution version is baseless so much so

none of the mandatory provisions under the Act, with regard to the

arrest, seizure and raid are stated to have been complied with in

accordance with the Act by the respondents. The alleged contrabands

seized are stated to fall under the category of an intermediate and

small quantity under the Act thus, excluding the application of Section

37 of the Act.

6. It is being stated that the two other co-accused persons have been

granted bail by this Court entitling the petitioner to bail as well on the

ground of parity.

7. Heard learned counsel for the parties and considered the matter.

8. Learned counsel for the parties while making their respective

submissions reiterated their contentions raised and grounds urged in

their respective pleadings.

9. It is pertinent and profitable to mention here that the provisions of

Section 37 of the Act are applicable for Commission of offences

under Sections 19, 24 and 27-A only when a commercial quantity of

a drug or substance is recovered. Section 37 supra forbids release on

bail of a person who is found in possession of commercial quantity of

drug or substance unless the prosecution is given an opportunity to

oppose the bail application and the court finds that the accused is not

Bail App No. 18/2021

prima facie involved in the commission of offences. The aforesaid

rider is in addition to the restrictions imposed by Section 497 Cr. PC.

Indisputably the petitioner is implicated under Section 8/20 and 29 of

NDPS Act and therefore the provisions of Section 37 are not attracted

thereto. This position has admittedly not been denied by the

respondents in their objections as well.

10. The settled position of law as evolved by a long line of decisions of

the Apex court on the subject relating to the grant of bail is that there

is no straight jacket formula or settled rules for the use of discretion

but at the time of deciding the question of "Bail or Jail" in non-

bailable offences, court has to utilize its judicial discretion not only as

per the settled law but also according to the principles laid down by

Cr. PC and judicial precedents. Reference in this regard is made to the

Apex court Judgment in case titled as "Data Ram Singh v/s State of

Uttar Pradesh & Ors" reported in 2018 (3) SCC page 22, wherein

at Paras 1, 2, 4 and 5 following has been noticed: -

1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.

Bail App No. 18/2021

Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

2. There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accuse person to police custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons.

5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah vs. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as a punishment. Reference was also made to Emperor vs. H. L. Hutchinson wherein it was observed that grant of bail is the rule

Bail App No. 18/2021

and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."

11. The petitioner as has been noticed in the preceding paras in the instant

petition has laid foundation for grant of bail on the bedrock of parity.

Perusal of the record reveals that co-accused Mohammad Shafi Rather

has been granted bail by this court on 12.11.2020, while deciding his

bail application bearing no. 74/2020 and co-accused Jahangir Ahmad

Rather has also been granted bail on 30.12.2020 in his bail application

No. 73/2020 by this court.

12. Pertinently an application for cancellation of bail granted in favour of

said accused persons, filed by the respondents had been dismissed by

this court on 30.12.2020.

13. This court is conscious of the legal position enunciated by the various

Courts that parity cannot be the sole ground for granting bail, yet it

has also been laid down therein by the courts that if upon examination

of a given case it transpires that the case of petitioner before the court

is identically similar to the accused on facts and circumstances who

has been bailed out, then the desirability of consistency will require

that such an accused should be also released on bail.

14. Having regard to the aforesaid position as noticed and considered in

the preceding paras, the case of the petitioner herein is found to be

identically similar to that of the above named accused persons

deserving him enlargement on bail as well on the ground of parity.

15. Viewed thus in the aforesaid backdrop, the instant application is

Bail App No. 18/2021

allowed and the petitioner/applicant is held entitled to bail subject to

following conditions:

I) Furnishing of personal bond to the tune of Rs. Fifty Thousand with two sureties of the like amount to the satisfaction of the trial court.

II) Not to leave the territorial jurisdiction of this Court without the permission of the trial court.

III) Not to influence directly or indirectly the prosecution witnesses or tamper with the prosecution evidence by any manner mode or method.

IV) To face and take the trial before the trial court without any fail.

16. Disposed of along with all connected CrLM(s).

(Javed Iqbal Wani) Judge Srinagar 18/05/2021 "Ishaq"

                i.     Whether the Order is speaking?               Yes/No.
                ii.    Whether the Order is reportable?             Yes/ No.