Tawkeer Ahmad Hajam vs Union Territory Of J&K
2021 Latest Caselaw 563 j&K/2

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


                                                 Reserved on 17.05.2021
                                                 Pronounced on 19.05.2021

                                                 Bail App No. 23/2021



Tawkeer Ahmad Hajam                                     .....Appellant/Petitioner(s)

                                Through :- Mr. Musavir Mir, Advocate

                         v/s

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

                                Through :-   Mr. Hakim Aman Ali, GA


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


                                JUDGMENT

1. The petitioner has filed the present bail application for grant of

bail in a challan pending before the Court of Learned Sessions Judge

Bandipora, arising out of FIR bearing No. 10/2018 of Police Station, Sumbal,

Bandipora on the ground that the petitioner is innocent and statutory provisions

of NDPS Act have not been complied with by the Investigating Officer during

investigation.

2. It is further stated in the bail application that in some remand

orders the petitioner is stated to have been arrested on 23.12.2017 whereas in

another remand order, the date of arrest has been shown as 10.01.2018 and

simultaneously, it is also pleaded that the section 29 of the NDPS Act has no

application in the case of the petitioner. Further the petitioner has been in

custody for the last more than three years irrespective of the fact that the

petitioner is innocent and the petitioner is not remotely connected with

commission of offence.

3. Response stands filed by the respondent in which besides stating

the factual aspects of the case, it has been stated that the applicant/petitioner is

involved in an illegal trade in an organized manner which is great threat to the

society and the volume of the contraband recovered from the petitioner does

not entitle the petitioner to be enlarged on bail in view of the strict bail

provisions as contained in the NDPS Act.

4. Mr. Musavir Mir, learned counsel for the petitioner has

vehemently argued that the petitioner is entitled to bail as the contraband

allegedly recovered from the petitioner is only 550 grams and, as such, rigors

of section 27 of the NDPS Act are not applicable. He further submits that there

is no evidence against the petitioner/applicant that necessitates the framing of

the charge under section 29 of the NDPS Act. He further submitted that the

petitioner has been in custody for the last more than three years and, as such,

he deserves to be enlarged on bail.

5. Per contra, Mr. Hakim Aman Ali, learned counsel appearing for

the respondent has vehemently argued that the petitioner has been charged for

commission of offences under sections 8, 20 and 29 of the NDPS Act and as

such, rigors of section 37 of the NDPS Act will apply in the instant case and

the recovery made from the petitioner cannot be considered in isolation vis a

vis recovery made from the other accused.

6. Heard and perused the record.

7. The brief facts which are necessary for disposal of the present

application as projected by the respondent are that on 10.01.2018, Police

Station, Sumbal received a written docket from SHO Police Station through

SPO Imtiyaz Ahmad stating therein the SHO along with escort party Sgct

Mohd. Rafiq, Ct. Sajad Hussain, SPO Qaiser Ahmad, SPO Imtiyaz Ahmad,

SPO Khurshid Ahmad, SPO Nazir Ahmad were on patrolling duty and a naka

was established at Shilvath main road near Ziyarat Baba Jungi. During naka

checking, two persons carrying bags in their hands were coming from village

Shilvath towards main road. The moment these two persons reached close to

naka party, both of them moved back and tried to flee from spot. They were

chased and apprehended along with their bags which they were carrying and on

their search, charas like substance in the form of cakes was recovered from

their possession and during questioning they disclosed their names as Tauqeer

Ahmad Hajan S/o Shamus Ud Din and about 550 gms charas like substance in

the form of 04 cakes was recovered from his possession and the another

accused revealed his name as Jameel Ahmad Hajan S/o Mohd Ashraf Hajam

and from his possession, 1 Kg 900 grams charas like substance was recovered

in form of 10 cakes. On receipt of docket, FIR bearing No. 10/2018 for

commission of offences under sections 8, 20 and 29 of the NDPS Act was

registered and after conclusion of the investigation, challan was present before

the court of Principal Sessions Judge, Bandipora and charges for commission

of offences under sections 8, 20 and 29 of the NDPS Act were framed against

the petitioner as well as other co-accused. The FSL report also confirmed that

the contraband so recovered from the petitioner and the co-accused was charas.

8. The learned trial court has rejected the bail application on the

ground that the material witnesses are yet to be examined and the quantity

recovered from the accused falls within the category of commercial quantity. It

is evident from the record that the charges for commission of offences under

section 8, 20 and 29 of the NDPS Act have been framed against the petitioner

as well as against other co-accused and the prosecution is leading evidence. As

the petitioner along with other co-accused have been charged for commission

of offence under section 29 of the NDPS Act so the individual recovery made

from the petitioner is of no consequence and the recovery from both the

accused is to be taken together for the purpose of determining as to whether the

alleged contraband falls within the category of commercial quantity or not.

Needless to say that sec 29 of NDPS Act makes the conspiracy to commit an

offence under the NDPS Act, punishable as well.

9. From the perusal of the record, it is evident that 550 grams of

charas was recovered from the applicant and 1 Kg 900 grams of charas was

revered from other co-accused. Both these recoveries together fall within the

category of commercial quantity so far as the petitioner is concerned and the

contention of the learned counsel for the petitioner that 550 grams recovered

from the petitioner is intermediate quantity, is of no consequence particularly

in view of the framing of charge for commission of offence under section 29 of

the NDPS Act. More so, the rigors of section 37 of the NDPS Act are

applicable in the instant case and at this stage, this Court is not in a position to

determine that the accused is not guilty of commission of offence for which he

has been charged and further that he will not indulge in similar type of offences

if released on bail. Reliance is placed upon the decision of Apex Court in case

titled "Superintendent, Narcotics Control Bureau versus R. Paulsamy"

reported in 2000AIR 3661(SC), the relevant paragraph 6 is reproduced as

under:

"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections."

10. So far as other contention of the petitioner is concerned that the

statutory requirements have not complied with by the Investigating Officer,

cannot be appreciated at this stage, particularly when the prosecution is leading

evidence before the trial court.

11. For all what has been discussed above, this bail application has not

merit and is dismissed.

(Rajnesh Oswal) Judge JAMMU:

19.05.2021
Rakesh

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