Jammu & Kashmir High Court
Rakesh Singh vs Union Territory Of J&K on 25 May, 2023
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No.36/2023
Reserved on: 17.05.2023
Pronounced on : 25.05.2023
Rakesh Singh .... Petitioner(s)
Through: Mr. Jagpaul Singh, Advocate
Versus
Union Territory of J&K ......Respondent(s)
Through: Mr. Sumeet Bhatia, GA
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. The petitioner is accused in a case registered vide FIR No.524/2022 at
Police Station, Udhampur for commission of offence punishable
under Sections 8/21/22 of the Narcotic Drugs and Psychotropic
Substances Act (for short, "NDPS Act") which, after investigation, is
pending trial before the court of learned Additional Sessions Judge,
Udhampur ["the Trial Court"].
2. Petitioner prior to it moved a bail application before the Trial Court
seeking his release from the judicial custody pleading therein that the
petitioner has been falsely implicated in the case, investigation is
complete and final report presented and nothing is required to be
recovered from him. The application for bail filed by the petitioner
was contested by the prosecution and the same was dismissed by the
Trial Court vide its order dated 02.01.2023. As is apparent from order
dated 02.01.2023 passed by the Trial Court, the petitioner was held
not entitled to release on bail in view of his involvement in two other
cases registered under Sections 8/21/22 of NDPS Act, in which
investigation is still pending, therefore, repetition of offence by the
petitioner cannot be ruled out.
3. Having been aggrieved, the petitioner has moved this Court for his
release on bail in the aforesaid case on the ground that the contraband-
Heroine (chitta) recovered from the petitioner was weighing 5.51
gms, which falls under intermediate quantity, as such, rigors of
Section 37 NDPS Act are not applicable and that the petitioner has
already been granted bail by the competent Court of law in other two
cases, against him.
4. Before adverting to the grounds on which the petitioner seeks
concession of bail, it would be appropriate to have the prosecution
version, which states that on 05.12.2022, PSI Rahul Jamwal
No.196625/EXJ along with Sgct Manohar Lal and SPO Nishant
Sharma were deputed at Circular Road, Omara Morh and Sallian
Talab area for patrolling on foot. During patrolling at about 1710 hrs,
when police party reached at Circular Road, Udhampur, PSI Rahul
Jamwal noticed one person coming from DFO Office toards Matador
stand, Udhampur; that on seeing the police party, he tried to hide
himself, this created suspicion and with the help of other members of
the police party, said person was apprehended after hectic efforts, who
disclosed his identity as Rakesh Singh S/O Kartar Sngh R/O Near
CEO Office Dhandyal, Udhampur. During personal search,
contraband (heroine) like substance wrapped in a transparent polypack
was recovered from the left pocket of his trouser. On questioning,
petitioner failed to give any satisfactory answer. On this docket was
prepared and sent through SPO Nishant Sharma to Police Station,
Udhampur for registration of FIR and with request to depute an I.O.
on spot for further investigation. On this report, case vide FIR
No.524/2022 for commission of offence under Sections 8/21/22
NDPS Act came to be registered and investigation was entrusted to
PSI Raman Kumar NO.EXJ-196681.
5. Petitioner was arrested, the requisite legal formalities were completed,
the contraband was seized, statements under Section 161 CrPC
recorded and the sealed samples were prepared and sent for
forensic/chemical analysis. The seized item was found to be
"Diacetyle Morphine (Heroine). Investigation of the case was
completed and challan presented before the Trial Court. It is claimed
by the prosecution that the case is proved by the statements of
witnesses including FSL expert and the Investigating Officer, who,
too are cited as prosecution witnesses.
6. Mr. Jagpaul Singh, learned counsel for the petitioner has reiterated the
submissions, which he made in support of his bail application before
the Trial Court. He submits that that given the fact that that the
contraband allegedly recovered from the petitioner is 5.51 gms in
weight, as such, falls under intermediate quantity, therefore rigors of
Section 37 of NDPS Act are not attracted in the present case. He
further submits that the rejection of bail application of the petitioner
by the Trial Curt on the ground that the applicant is involved in some
other criminal cases is wrong and not valid because mere registration
of a criminal case does not mean that the petitioner has committed the
said alleged offences. In support of his submissions, learned counsel
for the petitioner has placed reliance on a judgment of the Supreme
Court rendered in the case of Prabhakar Tewari v. State of Uttar
Pradesh and another, (2020) 11 SCC 648, a judgment of this Court
rendered in the case of Kishore Sharma v. State, 2017 SCC Online
J&K 516 and a judgment of High Court of Madhya Pradesh at
Jabalpur in Miss. Criminal Case No.15398 of 2022 decided on
22.04.2022 in support of this submission.
7. Mr. Bhatia, Learned GA for the respondent, on the other hand, has
contested the bail application on the ground that offence for which the
petitioner has been charged is very heinous and the trial is only at its
infancy and, therefore, enlarging the petitioner on bail at this stage
would have adverse affect on the fair trial in the case. It is submitted
that apart from the petitioner's involvement in FIR No.524/2022, he is
also involved in two other cases registered under the provisions of
NDPS Act, which shows that the petitioner is a drug peddler and
habitual offender and does not deserve concession of bail . Learned
counsel further argues that having regard to the fact that the petitioner
is a habitual offender and two more FIRs stand registered against him,
there is every likelihood of petitioner's indulging in the narcotic trade,
if released on bail.
8. Having heard learned counsel for the parties and perused the record, I
am of the view that the petitioner has not been able to make out a case
for grant of bail at this stage. It is true that the contraband (Heroine)
recovered from the petitioner-accused falls within intermediate
quantity, as such, rigors of Section 37 of NDPS are not attracted in the
present case. However, petitioner's consistent involvement in drugs is
a cause of concern. Even in a case, involving intermediate quantity of
narcotic/contraband and not attracting rigor of section 37 of NDPS,
the accused on conviction is liable to be sentenced to an imprisonment
upto ten years, besides fine. As such the offence of which petitioner is
accused/charged is a grave offence, given to severe punishment. The
Trial Court has taken note of all these aspects and has rightly come to
the conclusion that the petitioner had not been able to make out a case
where the Court is satisfied that there are reasonable grounds, that he
may repeat commission of such offence, in case enlarged on bail.
9. There is no denying the fact that the besides FIR No.524/2022,
petitioner is also involved in cases registered at Police Station,
Udhamour for commission of offences punishable under Sections
8/21/22 NDPS vide FIR No.461/2018 and at Police Station, Rehmbal
for commission of offences under Sections 8/21/222 NDPS Act., vide
FIR No.56/2022.
10. Looking to the background of the petitioner, who is claimed to be
indulging in supplying/selling narcotics drugs to youth in the area,
there is every likelihood that petitioner, if released on bail, may
commit the same offence yet again.
11. The judgments relied upon by the petitioner have been rendered in
their peculiar facts and circumstances but the facts in the instant case
are entirely different and at this stage, this Court cannot say with
certainty that on the basis of evidence put up by the prosecution
against the petitioner, there is any likelihood for believing that the
petitioner may not tamper with the prosecution evidence and that he
would not commit any offence while on bail.
12. While deciding the question of bail, it is the duty of the Court to
maintain a delicate balance between individual liberty and larger
interest of the society. Releasing a person involved in such a crime,
will give wrong signal to the society if such a person is permitted to
roam freely, after having been arrested on three occasions and even
after grant of bail, he recycled him, in the offences of same nature.
That apart, the trial is still at its infancy, therefore, this is not a stage
where indulgence of this Court is called for.
13. This application is, therefore, at this stage found to be devoid of any
merit and the same is, accordingly, dismissed.
(M A Chowdhary)
Judge
JAMMU
25.05.2023
Vinod
Whether order is reportable: yes
