Zubair Ahmad Bhat vs Ut Of J&K 'T
2021 Latest Caselaw 1013 j&K

        HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                            AT JAMMU


                                                Reserved on 26.08.2021
                                                Pronounced on 02.09.2021


                                                Bail App. No. 153/2021



Zubair Ahmad Bhat                                          ...Petitioner/Applicant(s)


                   Through :-             Mr. Iqbal Hussain Bhat, Advocate
                      v/s<




UT of J&K 't
                                                                  .....Respondent (s)

                   Through :-              Mr. Vishal Bharti, Dy. AG.


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

                                    JUDGMENT

1. The petitioner has filed the present application seeking bail in FIR

No. 132/2021 dated 14.04.2021 for commission of offences under section 8/15

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the

NDPS Act) after the bail application filed by the petitioner before the Principal

Sessions Judge, Udhampur was dismissed vide order dated 29.05.2021.

2. It is stated in the bail application that the petitioner is neither the

owner of the truck from which the contraband was allegedly recovered nor any

recovery was effected from the petitioner. It is submitted that the petitioner

was serving as SPO and has been falsely implicated in the case.

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

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

involved in heinous offence, therefore, he is not entitled to any concession of

bail.

4. Mr. Iqbal Hussain Bhat, learned counsel for the petitioner

vehemently argued that the challan stands filed against the petitioner and the

petitioner has been roped as an accused pursuant to the statement made by the

driver of the truck, as such, he deserves to be enlarged on bail.

5. Per contra, Mr. Vishal Bharti, Dy.AG submitted that challan for

commission of offences under section 8/15 and 29 of the NDPS Act stands

filed not only against the driver of the truck but against the petitioner as well,

who is the owner of the truck and as the contraband allegedly recovered is

more than the commercial quantity, so the rigors of section 37 of the NDPS

Act are applicable in the instant case.

6. Heard learned counsel for the petitioner and perused the record.

7. From the record, it is evident that on 14.04.2021 during patrolling

at 1700 hours, a Truck bearing registration No. JK02C 0797 was coming from

Srinagar towards Punjab was stopped by the police party, headed by HC Ashok

Kumar during Naka checking at Roun Domail and during the search of the

truck eight boxes and six small boxes (total 14) containing poppy straw like

substance were recovered. The driver of the truck disclosed his identity as

Aqib Ahmad Guru. The contraband was weighed and it was found to be 101

Kilograms. It was also found that a special cavity was made in the truck owned

by the petitioner.

8. A perusal of the challan reveals that the petitioner being the owner

of the truck, has been arrayed as an accused with the aid of section 29 of the

NDPS Act. The challan has been filed during the pendency of the petition and

since the quantity of the contraband allegedly recovered is more than the

commercial quantity, so this Court is of the considered opinion that at this

stage when the challan is pending before the trial court for arguments on

charge and discharge, the petitioner is not entitled to any concession of bail, as

any observation made by this Court while deciding the bail application may

cause prejudice to either of the party during arguments on charge/discharge.

9. In view of the above, there is no merit in this bail application. The

same is, as such, dismissed. However, the petitioner shall be at liberty to move

fresh motion at an appropriate stage. Needless to say that this court has not

made any observation with regard to the merits of the case.

(RAJNESH OSWAL) JUDGE

JAMMU 02.09.2021 Karam Chand/Secy.

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