Jammu & Kashmir High Court
Gowhar Ahmad Itoo vs Ut Of J&K on 21 October, 2023
Sr. No. 117
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 21.10.2023
Case : Bail App No. 265/2022
c/w
CRM (M) 627/2022
CrlM No. 1293/2022
Gowhar Ahmad Itoo,
S/o Abdul Rashid Itoo,
R/o Humshali Bagh,
Yaripora, Anantnag,
Through Abdul Rashid Itoo,
Age 58 years,
S/o Ali Mohammad Itoo,
R/o Yaripora, Anantnag. .....Petitioner(s)..
Through :- Mr. Siddhant Gupta, Advocate.
Vs
UT of J&K
Through In-Charge/SHO Police Station,
Ramban. .....Respondent(s)..
Through :- Mr. Eishaan Dadhichi, GA.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
21.10.2023
1. The petitioner-accused has filed an application for enlarging him on
bail in FIR No. 144/2021 for offences under Sections 8/15/29 NDPS
Act, 1985. The challan has been produced in the FIR. The bail
application filed before the trial court, learned Principal Sessions
Judge, Ramban stands dismissed vide order dated 27.04.2022. The
photo copy of the challan proceedings is also before the court.
2. A truck bearing No. HR56A-7084 was intercepted by the police
personnel near Shan Palace, Ramban and commercial quantity of
poppy straw was found during the search of the vehicle. Admittedly,
the applicant-accused was not in the vehicle when intercepted and
searched. The argument raised in the application by the learned counsel
for the applicant is that the accused has been roped in by the police on
the basis of disclosure and confessional statements made by the co-
accused which cannot be relied upon in view of judgment of Hon'ble
Supreme Court in (2021) 4 SCC 1 titled 'Tofan Singh vs. State of
Tamil. No recovery has been affected from the applicant. The evidence
so far gathered by the investigating agency should not come in the way
of the accused to get bail.
3. The status report has been filed by the respondents wherein the
respondent has given the details of the case made out against the
applicant herein. The respondent has relied upon the other
circumstances in addition to the statements made by the co-accused
against the applicant in order to impress upon the court that the accused
is prima facie involved in the present case. The accused cannot claim
bail as a matter of right though the challan has been produced in the
court of law and is pending disposal for the last two and a half years.
4. The perusal of the file reveals that the investigating agency during the
course of investigation have presented the charge sheet not only against
the persons who were occupants of the vehicle but two more accused
have been arrayed in the challan, one of them being Gowhar Ahmad-
applicant.
5. The confessional statement made by one of the accused could not be the
reason to implicate the accused. The judgment Tofan Singh (supra)
entitles the petitioner for bail as the statement made by the co-accused
has no sanctity in law. The other material collected by the investigating
agency does not make out that the accused is also party to the alleged
transaction. Admittedly no contraband has been recovered from the
accused, therefore, the petitioner is entitled to bail is the submission
from the learned counsel for the applicant.
6. Mr. Eishaan Dadhichi, learned Government Advocate has relied upon
the evidence collected by the investigating agency which according to
him shows the involvement of the accused in the case even if the
judgment in Tofan Singh case is to come to the rescue of the accused.
7. The reliance upon the judgment in Tofan Singh case (supra) if agreed to
it by the court in the present set of circumstances even then the
applicant can be held entitled to the Bail in the light of other
circumstances that unfolded during investigations and the material
collected in support of the challan produced against the applicant is
required to be seen.
8. During the course of investigation, the police have obtained call
records of the accused persons and the bank transaction of the accused
as a circumstance showing involvement of the accused in the matter.
The police agency has purportedly collected the evidence to show that
all the accused were present at a particular place during the relevant
period. The accused Gowhar Ahmad is stated to have provided
contraband to one of the accused at some distance from the petrol
pump at Mir Bazar. The accused, alleged to be supplier of narcotic, is
alleged to have received money through different bank transactions
from one of accused Ajay who transferred the amounts to him by using
the bank account of Sandeep and his wife. The statement of Sandeep
was also recorded during investigation in this regard. The movements
of the accused have been tracked during the relevant period as per the
case set up by the investigating agency.
9. The statements of some of the witnesses have been recorded before the
trial court. The counsel for the appellant has submitted that Sandeep
from whose account the amount is stated to have been transferred to the
account of the petitioner herein has not supported the case of the
prosecution while recording his statement before the trial court after the
charges were framed in the case.
10. The statement of PW Sandeep is not the only evidence to be produced
in the case against the accused herein. The other evidence qua the
petitioner is yet to come before the trial court. The documents of
financial transactions and call records on which the police agency relies
upon are yet to be tested in the trial. The case set up against the accused
is circumstantial in nature but will not entitled him to bail on that sole
ground. The rigor of Section 37 of the NDPS Act does come in the way
of the petitioner as the contraband seized i.e poppy straw is commercial
quantity. The evidence collected by the police cannot be said to be
prima facie completely fragile which convinces the court to grant bail
to the accused at this stage. The learned counsels for both sides have
cited judgments in support of their respective contentions. The
judgments need not be detailed as the circumstances of each case infact
determine as to whether the accused deserves bail or not. It is
premature to release the petitioner at this stage.
11. The application is without merit and is dismissed.
12. List the main petition CRM (M) No. 627/2022 on 04.12.2023.
(PUNEET GUPTA)
JUDGE
Jammu :
21.10.2023
Pawan Chopra
PAWAN CHOPRA
2023.10.21 16:18
I attest to the accuracy and
integrity of this document
