Jammu & Kashmir High Court - Srinagar Bench
Ishfaq Ahmad Wani vs Ut Th. Sho Police Station Lalpora ... on 26 May, 2023
Serial No. 208
Regular List.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App No. 07/2023
Reserved on 22.05.2023.
Pronounced on 26.05.2023.
Ishfaq Ahmad Wani
...Petitioner(s)
Through: Mr Sheikh Manzoor, Advocate.
VERSUS
UT th. SHO Police Station Lalpora Kupwara.
...Respondent(s)
Through: Mr. Sajad Ashraf, GA.
CORAM:
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
26.05.2023.
01. The present application has been filed by the petitioner for grant of bail in
FIR No. 49/2022 of of Police Station Lalpora Kupwara registered under Section
8 /2021, 29 NDPS Act.
02. It is stated that two persons were arrested near Jama Masjid Kupwara who
were travelling in a vehicle bearing Registration No.JK09-7013 and during their
search 458 bottles of corex (codeine) were recovered from their possession. It is
further stated that petitioner was arrested only on the basis of the disclosure
statement made by one of the accused. However, nothing was recovered from
the petitioner. It is also stated that the petitioner has been in custody since 31 st
August 2022.
03. The petitioner had laid a motion before the learned Principal Sessions
Judge, Kupwra for grant of bail, however, the same was rejected by the learned
trial court, vide order dated 6th of December 2022.
04. Response has been filed by the respondents wherein the factual aspects of
the case have been narrated. It is also stated that during investigation, Peer
Mudasir Ahmad, who was one of the accused, disclosed that that petitioner was
his associate and was involved in the illegal sale of codeine in the area. He was
also arrested and during investigation it was found that petitioner was in contact
with the accused persons. It is also stated that the chargesheet has been filed
before the learned Session Judge Kupwara on 3rd December 2022.
05. Learned counsel for the petitioner has vehemently argued that the
petitioner has been roped in as accused only on the account of the disclosure
statement made by one of the accused which has no relevance or admissibility in
the eyes of law, more particularly in view of the judgement of Hon'ble Apex
Court in "Toofan Singh Vs. State of Tamil Nadu" (2021) 4 SCC 1.
06. Per Contra, Mr Sajad Ashraf learned Government Advocate, for the
respondents has vehemently argued that there are call detail reports on record
demonstrating that the petitioner was in contact with the other accused persons.
07. Heard and perused.
08. The perusal of the record reveals that the petitioner has been arrayed as
accused after one of the co-accused namely Peer Mudasir Ahmad, made a
disclosure statement regarding the involvement of the petitioner. The petitioner
was arrested only after the disclosure statement was made by one of the co-
accused but nothing has been recovered from the petitioner.
09. Except the disclosure statement, there is no evidence against the petitioner
in the present case. The call detail reports do not pertain to the date of occurrence
i.e. 29th August, 2022, when the other two accused were arrested. There is no
material on record which suggests that the petitioner was earlier involved in the
commission of such type of offences. The petitioner has been in custody ever
since 31st August, 2022, and charge-sheet has also been filed against the
petitioner. The only evidence in the charge-sheet levelled against the petitioner
is the disclosure statement made by one of the co-accused which cannot be read
against the petitioner, particularly when nothing has been recovered from him.
10. Section 37 of NDPS Act is reproduced hereinunder:-
" Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of
imprisonment of five years or more under this Act shall be released
on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the
court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of sub-
section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974), or any other law for the time
being in force on granting of bail."
11. In Union of India v. Shiv Shanker Kesari, reported in (2007) 7 SCC 798
Apex Court has held as under:
11. The court while considering the application for bail with reference to
Section 37 of the Act is not called upon to record a finding of not guilty. It is
for the limited purpose essentially confined to the question of releasing the
accused on bail that the court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty and records its satisfaction
about the existence of such grounds. But the court has not to consider the matter
as if it is pronouncing a judgment of acquittal and recording a finding of not
guilty.".
12 Thus, the Court while considering bail application in matters, where
section 37 NDPS has its application, can simply look in to the material on record
but cannot critically evaluate the same so as to find out the sufficiency of the
material to detain the accused. Examining the case of the petitioner on the touch
stone of law laid down by Apex Court, this Court finds absence of any material
evidence against the petitioner connecting the petitioner with the commission of
offence for which he has been arrested as it is not forthcoming from the record
or from the statement of any witness that petitioner has abetted the commission
of offence or has been part of conspiracy to commit any offence under the Act.
More so, the prosecution has not placed on record anything to demonstrate that
the petitioner herein is earlier involved in similar type of offences as such this
court is of opinion that the petitioner is not likely to commit such offence in
future.
13. This Court is of the considered view that the petitioner has successfully
qualified the twin test prescribed by Section 37 of NDPS Act.
14. For the above reasons, this Court is of the view that the petitioner is not
required to be kept in custody as a matter of punishment only. The presence of
the petitioner is required only during the course of trial and the charge-sheet
stands already filed by the respondents. The present bail application is allowed
and the petitioner shall be released from custody on bail subject to the following
conditions:-
1. That he shall furnish personal bond in the sum of Rs. 50,000/- with one
surety in the like amount to the satisfaction of the trial court.
2. That he shall appear before the trial court on each and every date of
hearing.
3. That he shall not tamper with the prosecution evidence.
4. That he shall not leave the territorial limits of Union Territory of J&K
without prior permission of the trial court.
5. That in the event he is found to be involved in any such type of activities,
the same shall be deemed to be violation of the conditions imposed by
this Court.
15. Disposed of.
(Rajnesh Oswal)
Judge
SRINAGAR
26.05.2023
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