Jammu & Kashmir High Court
Sheikh Murtaza Gulzar vs State Of Tamil Nadu; (2021) 4 Scc 1. It Is on 19 February, 2025
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
CRM(M) No. 706/2024
c/w
Bail App No. 221/2024
Sheikh Murtaza Gulzar ...Petitioner(s)
Through :- Mr. M. A. Bhat, Advocate
v.
UT of J&K .....Respondent (s)
Through:- Mr. P. D. Singh Dy. AG
Coram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
19.02.2025
(Oral)
1. Petitioner has invoked inherent jurisdiction of this Court in terms of
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short,
"BNSS") read with Section 482 of Code of Criminal Procedure, 1989 ("Cr.P.C."
for short) for quashment of order dated 20.08.2024 passed by learned 3 rd
Additional Sessions Judge, Jammu, ["the trial court"] vide which, he came to be
charged for offences under Sections 8/21/22/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 ["NDPS Act"]. Alongside, he has preferred
an application under Section 483 BNSS read with Section 439 Cr.P.C. for his
emancipation. Since both the petitions trace their origin to FIR No. 15 of 2023,
thus, being disposed of by virtue of this common judgment.
2. Before a closer look at the grounds urged in the petitions, it shall be
expedient to have an overview of the backgrounds facts.
connected matter
3. As the prosecution story from the impugned order as also the trial court
record would unfurl, Incharge Police Station, Anti Narcotic Task Force, (ANTF),
Jammu, received a source information on 19.12.2023 at 11:00 hours that two
persons, namely, Naresh Kumar and Balwinder Chug, in furtherance of common
criminal intention to sell contrabands to the local youth, were transporting huge
quantity of banned syrups and tablets and their car, bearing Registration No.
DL9CAM-1558, was parked at Trikuta Nagar. On the receipt of this information,
aforesaid FIR came to be registered and investigation was entrusted to Sh.
Ankush Chib, Inspector. At about 11:30 hours, the investigating officer
proceeded to the spot and found the said persons sitting in the car, which came to
be searched in the presence of Executive Magistrate 1st Class, Bhalwal, as a
result whereof, a blue stroller luggage bag was recovered from behind the driver
seat (legs space area) and when opened, 136 bottles (100 ml each) of Novitas
Cough Syrup partially wrapped with brown tapes and 10 multi-coloured strips of
Etizolam tables (100 tablets) came to be recovered from the conscious possession
of the aforesaid persons. The contraband, as per the investigating agency, was
commercial quantity and requisite legal formalities were conducted on the spot.
4. It surfaced during investigation that accused, Naresh Kumar Verma had
collected the aforesaid contrabands of Cough Syrup bottles and tablets from
unknown persons from Delhi. He came to Jammu by train and handed over the
consignment to his associate, co-accused-Balwinder Chug, who sold the
intoxicants to co-accused-Naveen Chopra, Sunil Singh Jamwal and Sheikh
Murtaza Gulzar-the petitioner herein, who would sell contrabands to the local
youth of their respective districts Jammu, Samba and Ramban to make the young
generation addict, spoil their future and earn easy money.
connected matter
5. It transpired during investigation that all the accused persons were in
constant touch with each other as manifested from the record of call details
(CDRs) and transfer of sizeable amounts from the account of one accused to the
other. None of the accused could offer justifiable explanation regarding the cash
transactions. The petitioner and co-accused, Sunil Singh Jamwal and Naveen
Chopra came to be implicated, in the present case, on the basis of statements
made by accused Naresh Kumar and Balwinder Chug, from whose conscious
possession contraband in question came to be recovered. According to the
investigating agency, there was sufficient material in the shape of CDRs and cash
transactions on record to proceed against all the accused persons.
6. Petitioner has questioned the impugned order dated 20.08.2024, vide
which, he came to be charged by the trial court on the predominant premise that
the only evidence available against him, is his statement and statement of co-
accused, driver of the car, recorded by the investigating agency under Section 67
of the NDPS Act while they were in custody, which is inadmissible in evidence
in view of Tofan Singh vs. State of Tamil Nadu; (2021) 4 SCC 1. It is
contention of the petitioner that except the aforesaid two statements i.e. his
statement and that of co-accused, there is no material on record to connect him
with the alleged commission of offences and the statements recorded by the
investigating agency, during investigation, under Section 67 NDPS Act, is hit by
the provisions of Section 25 of the Evidence Act.
7. Countervailing the stand of the petitioner, Mr. P. D. Singh Learned Dy.
AG appearing for the UT has taken this Court to the CDRs to reiterate the stand
of the investigating agency that there is sufficient material on record for the
prosecution of the petitioner. Mr. Singh vehemently argued that petitioner was in
regular contact with co-accused persons and the cash transactions amongst co-
connected matter
accused persons, prima facie, reveals the involvement of the petitioner in the
present case. Learned Deputy Advocate General has also argued that since the
contraband recovered, in the present case, is a commercial quantity, therefore,
petitioner is not entitled to be released on bail in view of bar contained in Section
37 of the NDPS Act.
8. Having heard rival contentions of the parties and perused the record, I
have given my thoughtful consideration to the facts and circumstances attending
the present case as also the legal position governing the field.
9. Mr. M. A. Bhat, learned counsel for the petitioner has reiterated the
grounds urged in the memo of appeal and has produced a couple of orders passed
by this Court in Sunil Singh Jamwal v. UT of J&K and another [CRM(M)
No. 770/2024 dated 31.12.2024] and Naveen Chopra v. UT of J&K and anr.
[Bail App No. 250/2024 c/w CRM(M) No. 795/2024 dated 07.02.2025] by
virtue of which co accused Sunil Singh Jamwal and Naveen Chopra came to be
enlarged on bail by this Court, to claim parity.
10. Uncontroverted facts of the present case are that petitioner came to be
arrested in the present case on the basis of his statement and statement made by
co-accused, Balwinder Chug, recorded, during investigation, under Section 67 of
the NDPS Act, while they were in custody.
11. A three Judge Bench of Hon'ble Supreme Court, in a similar fact situation,
as per the majority decision in Tofan Singh (supra) has held that a confessional
statement made to the officers vested with the powers under Section 53 of NDPS
Act would be barred under the provisions of Section 25 of the Evidence Act,
because they are "Police Officers" in terms of the said section and a statement
recorded by them under Section 67 NDPS Act, can neither be used as a
confessional statement in the trial nor considered to sustain conviction of an
connected matter
accused under NDPS Act. Relevant excerpt of the judgment, for the facility of
reference, reads as below:
"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 provision 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."
12. However, the prosecution in the present case, seeks to rely upon the CDRs,
pertaining to the petitioner and co-accused to establish that all the accused
persons were in regular contact with each other, during the course of occurrence
and that they conspired with each other for the transportation and supply of the
contraband in question.
13. Confronted with the similar fact situation, the Apex Court in State by
(NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and anr.; 2022 (2)
Supreme 409 has ruled that CDRs details of an accused is an aspect that is to be
examined during the trial. Relevant observation of Hon'ble Supreme Court
captured in para 10 of the judgment reads as below:
10. "It has been held in clear terms in Tofan Singh vs. State of Tamil
Nadu, (2021) 4 SCC 1, 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 tempering 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, 16 January, 2020, 19th December, 2019 and 20th
January, 2020 passed in SLP (Crl.) No@ Dairy 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 to the respective
respondents, are dismissed as meritless.
connected matter
14. A similar view has been expressed by learned Delhi High Court in Amit
Ranjan vs. Narcotics Control Bureu, Delhi; 2022 (0) Supreme (Del) 376, in
the following words:-
"It is essential to observe that the aspects of the CDR details and
alleged connection between K.K. Pharma Solutions and Vinay
Pharmaceuticals and the applicant and the co-accused persons and
monetary transactions between them being in relation to illicit
trafficking of narcotic or psychotropic substances can only be gauged
at trial."
15. Identical view has been taken by this Court in Phool Chand vs. Narcotics
Control Bureau; 2022(5) JKJ[HC] 195 and Gh. Mohd. Bhat vs. Narcotics
Control Bureau through Intelligence Officer; 2022 (4) JKJ[HC] 57 that call
records of the mobile phone of the accused can be examined during the trial.
16. The trial court, at the stage of charge/discharge, is vested with the power to
sift and examine the material placed before it, for limited purpose, to ascertain
whether a strong suspicion is founded on the basis of said material, submitted by
the investigating agency or not. The Court, thus, is obliged to objectively analyze
the material produced in the final report to form a, prima facie, opinion whether
accused has committed the offence or not.
17. Reverting to the present case, prima facie, it appears from the CDRs and
cash transactions record obtained by the investigating agency during
investigation that petitioner was in regular contact with co-accused persons at the
time of commission of offence, which prosecution can be called upon to establish
during the course of trial. Therefore, I do not find any illegality or impropriety in
the impugned order dated 20.08.2024 passed by the trial court, vide which, the
petitioner came to be charged. However, since the contraband in question has not
been recovered from the conscious possession of the petitioner and, in particular,
since co-accused Sunil Singh Jamwal and Naveen Chipra in similar
connected matter
circumstances have been enlarged on bail by this court, therefore, in view of
principle of law enunciated by Hon'ble Supreme Court in Pallulabid Ahmad
Arimutta, the petitioner is entitled to bail.
18. For the foregoing reasons, CRM(M) 706/2024 is dismissed and impugned
order, vide which, petitioner came to be charged is upheld. However, Bail App.
No. 221/2024 is allowed and impugned order 22.08.2024 is set aside and
petitioner is admitted to bail on his furnishing a surety bond in the amount of Rs.
1.00 lac to the satisfaction of learned trial court and a bond of personal re-
cognizance of the like amount subject, however, to the following conditions that:
i) he shall not jump over bail and tamper the prosecution
evidence;
ii) he shall not leave territorial jurisdiction of the trial court
without permission;
iii) he shall not, in any way, threaten or coerce the prosecution
witnesses; and
iv) he shall appear before the trial court on each and every date of
hearing.
19. Both the petitions are disposed of accordingly along with connected
application(s)
(RAJESH SEKHRI)
JUDGE
Jammu:
19.02.2025
(Paramjeet)
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
