Jammu & Kashmir High Court

Shrishak Sharma @ Honey vs Union Territory Of J&K Through on 17 October, 2023

                                                                          Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

Bail App No.119/2023
                                                 Reserved on: 09.10.2023
                                                 Pronounced on:17.10.2023


      Shrishak Sharma @ Honey, Age 32 Years
      S/O Late Hari Krishan Sharma                               .....Applicant
      R/O R-8-C, Naveen Shahdra, Delhi
      Also at:-
      1/5970, Near Sai Mandir,
      Shahdra, Delhi-110032

                                Through :- Mr. Vishal Sharma, Advocate

        V/S
       Union Territory of J&K through
       Station House Officer,                                  .....Respondent(s)
       P.S. Crime Branch, Jammu


                                Through :- Mrs. Monika Kohli, Sr. AAG

CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                  JUDGMENT

1. Applicant, through this bail application under Section 439 CrPC,

seeks grant of bail in his favour, in a case titled 'UT of J&K v. Ajay Gupta &

Ors' for the commission of offences punishable under Sections 8/21/22/29

NDPS Act pending disposal before the Court of learned 1 st Additional Sessions

Judge (Special Judge), Jammu asserting that he is one of the accused/under trial

in the case and is presently lodged in District Jail, Jammu.

2. It has been asserted that the applicant is a businessman by profession

in Delhi and that he has been falsely implicated in a case registered by the Crime

Branch Jammu of J&K Police and arrested from his home on 20.11.2021

without disclosing any reason; that he was arrested and arrayed as accused only

on the basis of confessional statement of other co-accused recorded under

Section 67 of the NDPS Act, whereas no contraband had been recovered from

his possession or at his instance; that the allegations and averments made in the

entire charge-sheet and statement of other accused along with witnesses do not

make out any case against the applicant for the commission of the alleged

offences; that the trial court vide order dated 04.02.2023 had dismissed the

application moved by the applicant for grant of bail. Finally, it was prayed that

the applicant be admitted and released on regular bail in the case, pending on the

files of the Special Court, arising out of FIR No.45/2020 registered at Police

Station Crime Branch Jammu.

3. Pursuant to notice, the respondent filed objections, asserting therein

that Anti Narcotics Task Force (ANTF) Jammu on 22.11.2020 learnt reliably

that one Amit Saxena S/O Mukesh Saxena R/O Arjun Nagar, New Delhi along

with Surjit Kumar S/O Madan Lal R/O Jadla Nawanshehar Punjab have been

smuggling contraband drugs from Panipat to Srinagar in Truck No. PB10HB-

3586 which was presently parked on Kunjwani Narwal Bye Pass. On this

information, a case was registered vide FIR No. 45/2020 under Sections

8/21/22/29 NDPS Act at Police Station Crime Branch Jammu and the

investigation was assigned to Inspector Sunil Singh Jasrotia of ANTF Jammu;

that during investigation, IO along with his team found the truck parked at

roadside near Greater Kailash Chowk Jammu and during search detained the

three occupants of the truck, who disclosed their identifies as Amit Saxen, Surjit

Kumar and Rohit; that the Truck was subjected to search in presence of a

Magistrate and 55 corrugated cardboard boxes of brown colour and one plastic

bag of white and maroon colour concealed below the loaded blanket rolls were

recovered from the truck; that on checking of all the cardboard boxes and plastic

bag, Welcyrex Cough Syrup bottles packed in 50 card boxes, Wincirex Cough

Syrup bottles packed in 5 card boxes and Spasmoproxyvon Capsules in strips

packed in while maroon coloured plastic bag were recovered and seized; that on

counting 6700 bottles of Welcyrex and Wincirex (670 litres of syrup containing

Codeine) and 18000 capsules (09 kg 84 gm of salt containing Methaquolene) of

Spasmo-Proxyvon Plus capsules in commercial quantity were recovered and the

accused were arrested; that after investigation of the case, a preliminary

chargesheet was produced before the court of learned 1 st Additional Sessions

Judge, Jammu against the accused namely Amit Saxena, Surjit Kumar and

Rohit.

4. It was further pleaded that during further investigation under Section

173(8) of CrPC, it was found that some more persons were involved in the

sale/purchase/transport of the seized commercial quantities of the Narcotic and

Psychotropic Substances from Delhi to UT of J&K ; that accused Amit Saxena

and Surjit Kumar on inquiry disclosed the name of their other associates as Azad

Ahmad Wani, Shakeel Ahmad Wani both sons of Abdul Rehman Wani residents

of Kashmir (purchaser/transporters of seized Narcotic and Psychotropic

Substances) and Honey and Ravi residents of Delhi and Bunty resident of

U.P./Delhi (sellers/transporters of seized Narcotic and Psychotropic

Substances); that the arrested persons had been transporting the seized

consignment from Delhi to U.T. of J&K with common criminal intention,

conspiracy and in connivance of Azad Ahmad Wani, Shakeel Ahmad Wani

residents of Kashmir, Honey, Bunty and Ravi of Delhi.

5. As per investigation, it was found that the arrested persons had loaded

the seized consignment in the seized truck on 19.11.2020 at Alipur Delhi Truck

Parking area and concealed the seized contraband for further transportation to

UT of Jammu & Kashmir; that based on call data records, accounts statements

of suspected persons, it was found that some other persons including applicant

Shrishak Sharma @ Hone were in contact, with each others, for hatching the

conspiracy of the sale/purchase/transport of the seized contrabands. It was also

found that in the bank accounts maintained at Branch Durgapuri, Delhi of Bank

of Baroda, by one Shikha Sharma W/O Shirshak Sharma- applicant was also

used for crediting the amount of ₹49,000/-; on further investigation of the case,

the applicant was found involved besides some other persons in the conspiracy

of sale/purchase/transport of seized consignment; that the applicant along with

Ajay Gupta @ Bunty was arrested on 20.11.2021 from Kabir Nagar and North-

east Delhi.

6. It was lastly pleaded that the applicant- Shrishak Sharma @ Honey a

drug license holder of M/S Kanhaji Enterprises in connivance of accused Amit

Saxena, loaded 15 boxes of Welcyrex cough syrup from the firm in an auto

driven by one Hari Om on 19.11.2020 from Shahdara, Delhi and handed over

the same to accused Amit Saxena at Alipur Truck Parking, Delhi, as such, a

supplementary charge sheet was laid in the case against Ajay Gupta @ Bunti,

Ravi, Shakeel Ahmed Wani and Azad Ahmed Wani and applicant- Shrishak

Sharma @ Honey, for the commission of offences punishable under Sections

8/21/22/29 of NDPS.

7. Mr. Vishal Sharma, learned counsel for the applicant argued that the

applicant is a licensed wholesale drug dealer, having his dealership under the

name and style of M/S Kanhaji Enterprises in partnership and further submitted

that the plea of the prosecution that the dealership of the license was cancelled

being involved in this case was not correct as the license had been cancelled two

years after the alleged occurrence and not on the basis of the case registered; that

the applicant is alleged to have supplied the seized contraband to one Hari Om

who has not been arrayed as accused and that there was no link of evidence, as

such, there was no chance of conviction; that one of the partners of the firm

namely Ayush Sharma has been strangely cited as a prosecution witness, though

if some contraband drugs were alleged to have been supplied from the

partnership firm of the applicant, his partner was equally responsible for the

same and could not have been cited as a witness.

8. Mr. Sharma has also argued that the applicant has been implicated in

the case based on some confessional statement made by some of the accused and

such a statement has no evidentiary value to connect the applicant in the case, in

view of law laid down by the Apex Court; that the applicant has been facing

incarceration in a jail for the last more than one and a half years of his arrest

though there is no strong evidence against him, as neither the seized contraband

had been recovered from his possession nor there is any direct evidence for his

involvement in the case; that the drugs that had been seized in the case are not

prohibited drugs but are to be regulated, as such, this is not a case which has

been projected as that of a drug smuggling; that the evidence against the

applicant is only of seven prosecution witnesses, who are formal in nature, to

prove certain documents only. He finally prayed that the applicant who is in

incarceration for more than one and a half years for no fault and whose family

including his wife and a small child has been suffering for his continued

detention being sole bread earner for the family, be ordered to be released, on

being admitted to bail.

9. Learned Sr. AAG argued that, ex adverso, that the applicant is

involved in grave offences as he is alleged to have supplied a huge commercial

quantity of the drugs to a drug syndicate operating between Delhi and Kashmir

as the drugs supplied from his firm and recovered in Jammu, had been

transported without any valid documentation; that the applicant cannot get away

with the statement that there is no evidence against him as an amount of

Rs.49,000/- was credited to the account of his wife by one of the accused Amit

Saxena who had been arrested, while the drugs were recovered. She further

argued that there is sufficient evidence in the form of call details from the cell

phones of not only the applicant but also of his wife with the other co-accused in

the case; that the seized drugs are of commercial quantity, as such, on conviction

there is stringent punishment for the commission of the offences; that the case

also attracts the rigour of the provision of Section 37 of the NDPS Act which

creates a statutory bar for grant of bail to an accused found involved in a case of

recovery of commercial quantity of the drugs. She finally prayed that the bail

application filed by the applicant, being without any merit and substance, be

rejected.

10. Heard, perused and considered.

11. It is an admitted case that the recovery had not taken placed from the

applicant-accused and also there was no direct evidence with regard to supply of

the seized drugs by the applicant-accused. He has been arrested in the case on

confessional statement of the co-accused, during investigation, recorded under

Section 67 of the NDPS Act. The applicant admittedly was a wholesale dealer in

drugs and the seized drugs were also stated not to be prohibited but only to be

regulated for medical use. The applicant has been in custody for a period of

more than one and a half years.

12. The Apex Court in a case tilted Md. Muslim @ Hussain v. State

(NCT of Delhi) reported in 2023 LiveLaw (SC) 260 had granted bail to an

accused from whom 180 Kgs of Ganja had been recovered for having suffered

incarceration of over seven years and held that grant of bail on account of undue

delay in trial cannot be said to be fettered by Section 37 of the Act. The Apex

Court again in a case titled Rabi Prakash v. State of Odisha reported in 2023

LiveLaw (SC) 533 granted bail to the applicant from whom commercial quantity

of 247 Kgs of Ganja had been recovered and who was in custody for more than

three and a half years for the reason that trial had commenced but only one out

of the 19 witnesses had been examined and that conclusion of trial would take

some time.

13. Having regard to the facts that there is no direct evidence against the

applicant and the seized drugs had also not been recovered from his possession,

long incarceration and also that the trial would take time in view of charge

sheets produced in piecemeals by the prosecution, even if the offences of which

the applicant has been accused are heinous in nature, attracting stringent

punishment, however, in view of peculiar facts and circumstances of the case,

this court is of the opinion that the applicant has made out a case for grant of

bail in his favour.

14. Viewed thus, the Bail application is thus allowed, granting bail in

favour of the applicant. The applicant-accused is admitted to bail subject, to the

following conditions that he shall:

i) furnish bail and personal bonds to the tune of Rs.1,00,000/- each

and also cash security in the like amount to the satisfaction of the

trial court;

ii) attend the trial on each and every date of hearing without any fail

and his absence would entail cancellation of the bail on a motion

by the prosecution;

iii) intimate to the trial court as well as public prosecutor of the court,

the place of his work and residence along with his cell numbers;

iv) not try to influence any of the prosecution witnesses by coming in

contact with them or tamper the prosecution evidence in any

manner whatsoever; and