Jammu & Kashmir High Court
Mohd Farooq Sheikh Age 36 Yrs. vs Applicant/Accused Lying In ... on 13 December, 2022
Sr. No.125
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 298/2022
Reserved on : 29.11.2022
Pronounced on: 13.12.2022
Mohd Farooq Sheikh age 36 yrs. S/O Mohd ....Applicant(s)
Maqbool Sheikh R/O Lountha Tangdhar Tehsil
Karna District Kupwara (at present lodged in
District Jail Udhampur)
Through :- Sh.Neeraj Gupta, Advocate.
V/s
Union Territory of Jammu Kashmir through ....Non-applicant(s)
SHO Police Station, Udhampur.
Through :- Sh. Sumit Bhatia, GA.
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
13. 12 . 2022
1. Applicant/accused lying in custody since 01-07-2019 for the last more than three
(3) years in FIR No. 290 of 2019 u/ss 8/21/22/29 of NDPS Act registered with
police station Udhampur only for his indictment for infraction of Section 29 of the
said Act for abetment/party to criminal conspiracy to commit an offence has
claimed bail on the grounds, that he has been falsely implicated in the above FIR
on the statement of PW-14 Ijaz Ahmad (S/O Nazir Ahmad Sheikh R/O Tangdhar
Kupwara recorded u/s 164-A Cr.pc on 29-07-2019) who was earlier an accused
and given the benefit of section 169 of Cr.pc by I/O and made witness by the
police and on his statement applicant/accused was arrayed as accused; that
aforesaid PW-14 was examined by the prosecution on 23-03-2022 as prosecution
witness before the trial court and in his deposition the said witness deposed
nothing adverse against applicant/accused nor supported the prosecution version
or his statement u/s 164-A Cr.pc, there exists no material to connect
applicant/accused with commission of crime which has totally falsified the
prosecution version showing the innocence of applicant/accused; that the
applicant/accused preferred bail application before the court of Ld. Pr. Sessions
Judge Udhampur which was dismissed on 18-05-2022 without even appreciating
the statement of PW-14; that the detention of applicant/accused for such a longer
period would neither serve the interest of prosecution nor the cause of justice, no
offence has been made out against applicant/accused who undertakes to abide by
all the terms and conditions as deemed fit and proper by this court if enlarged on
bail.
2. Respondent has opposed the bail on the grounds, that on 20-06-2019 at about
20.15 hours Ct. Shiv Kumar No. 624/U alongwith other policemen on checking
duty at naka point Jekhani Udhampur stopped one Tata Sumo Vehicle bearing
registration No. JK03A/6015 coming from Kashmir side and on checking of the
said vehicle, 8 kg 240 grams of heroin (chitta) was recovered and seized from the
possession of A-1 Shiraz Ahmad (driver of the vehicle) S/O Gul Mohd Ganai
R/O Nawbughkund Devsar Qazigund District Kulgam & A-2 Javed Ahmad S/O
Abdul Kabir caste Shah R/O Rauzlu Qazugund Tehsil Devsar District Kugam as
the said persons could not give any satisfactorily reply regarding the recovery and
possession of said contraband which resulted in registration of FIR No. 290/2019
u/ss 8/21/22/29 of NDPS Act. It is contended, that applicant/accused Mohd
Farooq was indicted in the case on the enquiry/questioning of aforesaid two
accused and on the statement of one Ijaz Ahmad (PW-14) who was earlier an
accused and later given benefit of section 169 Cr.pc and offence u/s 29 of NDPS
Act was added against applicant/accused, challan against applicant/accused and
other 2 co-accused has been submitted in the trial court of Ld. Pr. Sessions Judge
Udhampur on 14-12-2019 and number of witnesses have been recorded and yet
others are to be recorded, the volume/quantity of contraband seized entails strict
bail provisions contained in section 37 of NDPS Act and no accused can be
granted bail involved in commercial quantity, offence indicated against
applicant/accused is prejudicial to the interest of society, there is every likelihood
of tempering of prosecution evidence by applicant/accused if granted bail,
enlarging of applicant/accused on bail would encourage offenders of like nature,
the offence indicted against applicant/accused should be dealt with iron hands as
he by seeking the bail would repeat the offence and indulge in spoiling the young
generation of the country, prayer has been made for rejection of the bail.
3. Sh. Neeraj Gupta Ld. Counsel for applicant/accused reiterating the grounds
adopted in the bail application, has sought the release of applicant/accused on bail
by vehemently canvassing the arguments, that on 26-06-2019 at 10.15pm police
naka party headed by Ct. Shiv Kumar No. 624/U alongwith other police personnel
at naka point Jekhani Udhampur stopped Tata Sumo bearing registration No.
JK03A/6015 coming from Srinagar towards Jammu driven by its driver/accused
No.1 Shiraz Ahmad S/O Gul Mohd Ganai R/O Nawbughkund Devsar Qazigund
District Kulgam & A-2 Javed Ahmad S/O Abdul Kabir caste Shah R/O Rauzlu
Qazugund Tehsil Devsar District Kugam and from them while checking 8kg 240
gram heroin (Chitta) were recovered and as both the accused could not give a
satisfactorily reply they were taken into custody. It is argued, that after checking
call details of the mobile phone of A-2 Javed Ahmad it was observed that his
phone was used to have the call on phone No, 849184096 on the day of
occurrence of 20-06-2019 from 10am to 3pm and this call was on the name of one
Ijaz Ahmad who was lateron arrested from his native place and on whose
disclosure it was found that the said phone was used by his cousin brother
applicant/accused Mohd Farooq, lateron, accused Ijaz Ahmad was given benefit of
Section 169 of Cr.pc and was made prosecution witness in the case as PW-14 and
his statement recorded u/s 164-A Cr.pc applicant/accused was made accused in
the case in hand, arrested on 01-07-2019 and sent to judicial custody in District
Jail Udhampur, hence applicant/accused indicted for criminal conspiracy u/s 29 of
NDPS Act 1985 alongwith co-accused Sheeraz Ahmad and Javed Ahmad. It is
moreso argued, that PW-14 Ijaz Ahmad was examined as prosecution witness by
the trial court, who did not utter any incriminating evidence against
applicant/accused and even he was not declared hostile by the prosecution, and
therefore has not proved the essential requirements of Section 29 of NDPS Act
which deals with the abetment/party to criminal conspiracy to commit the offence
under NDPS Act. It is argued, that rigor contained u/s 37 of NDPS Act only
applies to a case where a person/accused is found indicted for commission of
offences u/s 19 or sec. 24 of Sec. 27-A and also for offences involving
commercial quantity, but as the applicant/accused is only indicted for section 29
of NDPS Act which too has not been established by the deposition of prosecution
witness-14, a rigor contained in section 37 does not apply to the case in hand,
hence, applicant/accused has a strong case for his enlargement on bail.
4. Sh. Sumit Bhatia Ld. GA for respondent has vehemently opposed the bail by
projecting arguments, that on the statement of PW-14 Ijaz Ahmad recorded before
the trial court of Pr. Session Judge Udhampur accused has been found involved
for commission of offence of criminal conspiracy as the co-accused A-1 Sheeraz
Ahmad and A-2 Javed Ahmad have been found carrying commercial quantity of
contraband heroin (chitta) weighing 8kg 240 grams. It is argued, that Section 37
of NDPS Act fully applies to the case in hand as there is conspiracy to transport
commercial quantity of contraband, although nothing has been recovered from
applicant/accused, yet he has been found involved for the conspiring of
transporting commercial quantity of heroin, hence the bail application requires its
outright dismissal.
5. I have heard Ld. Counsel for applicant/accused and Ld. GA for respondent. I have
bestowed my thoughtful consideration to the material aspects involved in the case
and have gone through the relevant law on the subject matter meticulously. The
allegations against applicant/accused as emerge out from the chargesheet briefly
depict, that on 20-06-2019 Ct. Shiv Kumar No. 624/U deployed on traffic
checking duty alongwith Ct. Anil Kumar No. 533/U, Ct. Ganesh Kumar No.
1116/U, SPO Javed Ahmad No. 1033/SPO, SPO Sahil Sharma No. 947/SPO and
others at naka point Jekhani Chowk Udhampur were checking the vehicles to and
fro and at 10.15pm at the said naka point a vehicle Tata Sumo bearing registration
No. JK03A/6015 was being driven by its driver A-1 Shiraz Ahmad S/O Gul Mohd
Ganai R/O Nawbughkund Devsar Qazigund District Kulgam & one more person
boarded in the vehicle as passenger viz; A-2 Javed Ahmad S/O Abdul Kabir caste
Shah R/O Rauzlu Qazugund Tehsil Devsar District Kugam was stopped for
checking, and while checking a white coloured plastic bag having mark AMMAR
FLOOR Mill was obtained from underneath the dickey seat, after opening this
bag, 8 packets of equal measurement/size were found, upon which mark KKKJ-III
was written, driver and passenger disclosed their address and whereabouts, both
of them were asked in regard to contraband who did not give any satisfactorily
reply, hence arrested and indicted in the case in hand. It is the prosecution story,
that after checking the call details of A-1 Sheeraz Ahmad and A-2 Javed Ahmed it
was observed that mobile phone of A-2 Javed Ahmed was used to have a call on
phone No 849184096 of one Ijaz Ahmad S/O Nazir Ahmad Shah R/O
LobthaTangdhar District Kupwara who was brought from his native place to
ascertain the phone No. and said Ijaz Ahmad told that his phone was used by his
cousin brother namely Mohd Farooq applicant/accused in the case in hand, lateron
during the investigation said Ijaz Ahmad was made witness in the case, given
benefit of Sec. 169 of Cr.pc and his statement as prosecution witness was
recorded u/s 164-A Cr.pc before JMIC on 29-07-2019 and thereafter
applicant/accused was taken into custody on 01-07-2019 much after the
registration of FIR on 20-06-2019 earlier indicting only co-accused persons A-1
Sheeraz Ahmad and A-2 Javed Ahmed. It is apt to mention here, that the
chargesheet against applicant/accused and other co-accused persons has been
presented in the court of Pr. Sessions Judge Udhampur on 14-12-2019. Charges
against applicant/accused and other two (2) co-accused A-1 Sheeraz Ahamd & A-
2 Javed Ahmad have been framed on 09-01-2020. Accused persons pleaded not
guilty to the charges and claimed trial. Prosecution so far has examined as many
as 6 witnesses out of 21 listed in the challan including PW-14 Ijaz Ahmad the sole
witness alleged to have deposed against applicant/accused in regard to criminal
conspiracy u/s 29 of NDPS Act 1985. It is trite law, that at the stage of granting
bail, the court can only go into the question of the prima-facie case established for
granting bail, it cannot go into the question of credibility and reliability of the
witness examined by the prosecution during trial. For the limited purpose of
finding the prima-facie case against applicant/accused in the case in hand for his
culpability in regard to criminal conspiracy in Section 29 of NDPS Act, the sole
witness of the prosecution PW-14 Ijaz Ahmad during his deposition before the
trial court has deposed as under:-
"In examination-in-chief, deposes, that he knows the accused
No.3 Farooq Ahmad and does not know other accused persons.
On 20-06-2019 he was to go to Srinagar for preparing the
documents of his vehicle and accused Farooq Ahmad met him on
the road at Notha who asked him where he has to go. He told that
he has to go to Srinagar. Accused told him to board his vehicle
and when they reached at a place Tangdhar accused told him to
give his phone to him as he was having no balance amount in his
phone. Accused told him that he has to call some passenger as
such he gave him phone to accused who told him to drove the
vehicle as the accused himself had sat on back seat of the vehicle
when crossed the Army gate of Chowkibal, they came down from
the vehicle for taking tea in a hotel. Thereafter accused Farooq
Ahmad drove the vehicle and they reached Tankpora Srinagar.
He came down from the vehicle as he had to go to RTO office as
such he told accused Farooq to give back his phone, but said
Farooq told him to attend the RTO office and on return mobile
phone will be given back to him. He went to RTO office, but
clerk concerned told him that it will take time and suggest him to
come to him after some time. He returned back to Tankpora
Srinagar as accused Farooq was having a rental house there. The
mobile phone was given back to him by Farooq who left the
room but told him to wait for him. Farooq did not return back and
on the next day he told him that the mobile phone was being
misused as such he suggested him to destroy the sim card. He due
to fear had destroyed the sim card. His statement was recorded in
the court u/s 164-A Cr.pc. In cross-examination the witness has
deposed, that he was arrested by police from his house on 23-02-
2019 and kept in local police station when police of police station
Udhampur came to police Station Tangdhar from where he was
taken to JIC Kupwara from Tangdhar, where police enquired
from him in JIC, then they arrested accused Farooq Ahmad and
took him to police station Udhampur, wherefrom, he was taken
to JIC Jammu and was interrogated but police had not beaten
him. He remained in JIC Jammu for 7 days and then was shifted
to District Jail. He was kept under custody in Udhampur Jail for
about 15 days. Police team comprising of 3/4 police personnels
took him before the court for recording his statement. After
recording his statement u/s 164-A Cr.pc police had taken him to
jail and after taking his signatures police had sat him free. At the
time of his driving the vehicle of accused Mohd Farooq 6/7
passengers were boarded in the said vehicle and at that time his
cell phone was in possession of accused Farooq Ahmad. He has
no knowledge whether accused Farooq Ahmad given his phone
to any person for its use or not. Police had told him that if he will
record his statement before the court then police will set him free.
He has not knowledge as to whom accused Farooq had
telephonic talk with his cell phone nor he has the knowledge that
how long his cell phone remained with accused Farooq nor he
has knowledge that apart from Mohd Farooq who else had used
his phone".
6. The deposition of PW-14 Ijaz Ahmad who is the sole witness to link
applicant/accused with section 29 of NDPS Act regarding conspiracy, in
examination-in-chief or in his cross-examination has not uttered a single word
muchless led any incriminating evidence regarding the abetment or the
applicant/accused being part of criminal conspiracy to commit the offence
alongwith co-accused Sheeraz Ahmad and Javed Ahmad. PW-14 Ijaz Ahmad
(earlier accused in the case in hand) has been given benefit u/s 169 Cr.pc and his
statement recorded u/s 164-A Cr.pc and made witness of the prosecution in the
case in hand, how much relevance can be imparted to his statement made before
the trial court is moot point for consideration before this court. Hon'ble Apex
Court in Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1] while discussing
and appreciating the scope of statement of an accused recorded u/s 67 of NDPS
Act has held as under:-
"158.1. That the officers who are invested with powers
under section 53 of the NDPS Act are police officers
within the meaning of section 25 of the Evidence Act,
as a result of which any confessional statement made
to them would be barred under the provisions of
section 25 of the Evidence Act, and cannot be taken
into account in order to convict an accused under the
NDPS Act.
158.2. That a statement recorded under section 67 of
the NDPS Act cannot be used as a confessional
statement in the trial of an offence under the NDPS
Act."
7. Again Hon'ble Supreme Court in a bunch of petitions [viz; petition for special leave to
appeal (Crl) Nos. 242 of 2022, 1569 of 2021, 1454 of 2021, 1465 of 2021 2080 of 2021
& 1773-74 of 2021] in cases titled State by (NCB) Bengaluru.....Petitioner Versus
Pallulabid Ahmad Arimutta & Anr..... Respondents and Anrs. decided on January 10,
2022, while confirming the orders of Karnataka High Court releasing accused on
bail [except A-2 Mohd Afzal found in possession of commercial quantity of 4.525
kg of Hashish, 965 grams of Amphetamine and 30 grams of Cocaine] indicted for
commission of offences punishable under sections 8(c) 8(A) r/w Sections 20(b),
21, 22,27-A,27-B,28 & 29 of NDPS Act on the grounds that that some of the
accused were arrested on the basis of CDRs details and voluntarily confessional
statements of the co-accused recorded under Section 67 of NDPS Act by NCB, in
para 10 of the judgment/order held as under:-
10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu that a
confessional statement recorded under Section 67 of the NDPS Act will remain
inadmissible in the trial of an offence under the NDPS Act. In the teeth of the
aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the
confession/ voluntary statements of the respondents or the co-accused under
Section 67 of the NDPS Act, cannot form the basis for overturning the
impugned orders releasing them on bail. The CDR details of some of the
accused or the allegations of tampering of evidence on the part of one of the
respondents is an aspect that will be examined at the stage of trial. For the
aforesaid reason, this Court is not inclined to interfere in the orders dated 16th
September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019
and 20th January, 2020 passed in SLP (Crl.) [email protected] Diary No. 22702/2020, SLP
(Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021
and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly,
upheld and the Special Leave Petitions filed by the petitioner-NCB seeking
cancellation of bail granted to the respective respondents, are dismissed as
meritless.
8. Ratios of the judgments of "Tofan Singh" and "Pallulabid Ahmad Armutta"
cases (Supra) make the legal proposition abundantly clear, that the officers of
NCB are police officers within the meaning of Section 25 of Evidence Act, as
such, a confessional statement recorded u/s 67 of NDPS Act will remain
inadmissible in the trial of an offence under NDPS Act, CDR details of the
accused will be examined at the stage of trial, and if no recovery of commercial
quantity of contraband is effected from the accused, the rigor of Section 37 of
NDPS Act is not applicable and the accused is/are entitled to bail. Ratios of the
judgments (Supra) squarely apply to the facts of the case in hand.
Applicant/accused in the case in hand was taken into custody by the I/O on 01-07-
2019 on the statement of PW-14 Ijaz Ahmad (earlier accused in the case) and on
the basis of calls and use of mobile phone number 849184096 his complicity was
found in the case in hand. Even PW-14 Ijaz Ahmad during his deposition before
the trial court has not uttered any incriminating evidence to establish that
applicant/accused abetted or was part of criminal conspiracy U/S 29 of NDPS Act
to commit an offence alongwith co-accused A-1 Sheeraz Ahmad & A-2 Javed
Ahmad. As the confessional statement of PW-14 Ijaz Ahmad (earlier an accused
in the case) will remain inadmissible in the trial of offences against
applicant/accused and the CDR details are to be examined at the stage of trial and
as no recovery of commercial quantity of contraband heroin (chitta) has been
effected from conscious possession of applicant/accused, in light of the ratio's of
the judgments (Supra) a strong prima-facie case for bail has been carved out by
applicant/accused. Therefore, the bail application is allowed. Accordingly,
applicant/accused is admitted to bail subject to his furnishing solvent surety in the
sum of Rs. fifty (50000/-) thousand to the satisfaction of Registrar Judicial of this
Court with the direction to furnish personal recognizance in the like amount
before Incharge District Jail Udhampur. Before parting the following conditions
are imposed upon the accused:
(i) that the applicant/accused shall appear before the trial court on each and
every date of hearing unless exempted by the trial court;
(ii) that the applicant/accused shall not leave the territorial jurisdiction of the
High Court of U.T. of J&K and Ladakh till the conclusion of trial unless
permitted by this court;
(iii) that in case prosecution collects any material during the period the accused
is on bail that he has influenced the witnesses or tried to intimidate them, the
prosecution would be well within its right to move an application before this
court for cancellation of his bail.
9. Disposed of accordingly.
Jammu: (Mohan Lal)
13.12.2022 Judge
Vijay
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
