Mohd. Azam v. UT of J&K

Judgment

1. The instant bail petition has been maintained by the petitioner herein as a second attempt for seeking his release in case arising out of FIR No. 566/2020 dated 01.11.2020 registered with Police Station, Udhampur for offences under Sections 8/20/27-A/29/25 of the NDPS Act, 1985 having got culminated into a charge-sheet pending trial before the court of Additional Sessions Judge, Udhampur.

2. As per the prosecution version on 01.11.2020, a Police Party of Police Station, Udhampur received an information that one Irfan Pal along with one Samrat Mughal and Nisar Ahmed are sitting in a vehicle bearing registration No. JK03D-6434 and are involved in the selling of contraband charas and that one Nazar Mohd came on a scooty in order to buy charas and that the said Police party conducted a raid thereon and recovered charas from the vehicle and scooty in question and arrested the said persons and during the course of interrogation it surfaced that one Mohd. Azam (petitioner herein) is also involved in the selling of 2 Bail App No. 75/2024 contraband charas in Jammu and upon receipt of the said information, the shop of said Mohd. Azam (petitioner herein) situated at Mominabad, Jammu was raided and 1.200 kg of charas was recovered lying under a setti in from his shop and that upon completion of the investigation, a charge-sheet in the matter was laid before the competent court.

3. The petitioner herein has sought bail in the instant petition, inter alia, on the premise that the prosecution while conducting investigation in the case committed gross violation of the mandatory provisions of the NDPS Act, 1985, which entitles the petitioner herein to the concession of bail and that even during the course of investigation, the Investigation Officer prepared documents in his office on his own being part of the charge-sheet and infact the accused/petitioner herein came to be implicated in the case without any basis and that the accused/petitioner herein has no previous criminal record and that the accused/petitioner herein has been incarcerated in the case in question last more three years and the event accused/petitioner herein is granted bail, the accused/petitioner herein will neither jump over the bail nor temper with the prosecution evidence.

4. Objections to the petition have been filed by the respondents, wherein the same is being opposed, inter alia, on the ground that the contraband charas recovered the possession of accused/petitioner herein was of a commercial quantity and that the accused/petitioner herein has been found involved in smuggling of the narcotic charas as an easy mode adopted by him for earning money 3 Bail App No. 75/2024 and in the process spoils the lives of people besides causing damage to the economy of the country and that the accused/petitioner herein has a close nexus with the gang of criminals who are involved in the network of narcotic trade in the entire Union Territory.

Heard learned counsel for the parties and perused the record.

5. Perusal of the record reveals that the prosecution has cited 24 witnesses in the charge-sheet in support of its case and out of said 24 witnesses, 9 witnesses have been examined so far after framing of the charge by the trial court against the accused persons including the petitioner herein.

6. Before proceeding further in the matter, it would be appropriate to refer to the position of law relating to the law of bails and matters connected thereto under the NDPS Act, 1985. Law in this regard stands settled in a series of judgments passed by the Apex Court including in case titled as State of Kerala and others Vs. Rajesh and others reported in 2020 (12) SCC 122, wherein at paras 17, 18, 19 and 20 following has been laid down: “17. The jurisdiction of the court to grant bail circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus: “37. Offences to be cognizable and non bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- 4 Bail App No. 75/2024 (a) Every offence punishable under this Act shall be cognizable; (b) No person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-a and also for offences involving commercial quantity 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 limitation 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;

18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India vs. Ram Samujh, it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two person, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their 5 Bail App No. 75/2024 nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reasons may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. State (UT of Goa) as under: (SCC p. 104, para 24) ’24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) There are reasonable grounds believing that the accused is not guilty of such offence; and (ii) That he is not likely to commit any offence while on bail 6 Bail App No. 75/2024 are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio- economic consequences and health hazards which would accompany trafficking illegally dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.”

19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 Cr. P.C. but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable cause for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offences. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitation provided under the Cr. P.C., or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 7 Bail App No. 75/2024

7. As emerges from the record and having also noticed hereinabove the rider of Section 37 of the Act of 1985 is applicable to the case in hand owing to the fact that a commercial quantity of the contraband charas stands allegedly recovered from the petitioner herein. It also needs to be mentioned here that as per law, the exercise of power to grant bail to an accused under the Act of 1985 is not only subject to the limitations contained under Section 439 Cr. P.C., but is also subject to the limitations placed by the Section 37 of the Act of 1985 which commences with Non Obstante clause and it is also pertinent to note here that the operative part of the Section 37 (Supra) is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied, firstly that the prosecution must be given an opportunity to oppose the application and secondly, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and if either of the two conditions is not satisfied, the bar for granting bail under Section 37 (Supra) operates.

8. Keeping in mind the aforesaid position of law, inasmuch as the facts of the case, perusal of the record available on the file, inasmuch as the statements of the witnesses accompanying the bail application having been recorded so far by the trial court, it is manifest that the alleged recovery of the contraband charas from the petitioner has not been discarded or discreted so far. Thus, under these circumstances, this Court is of the considered opinion at this stage that there are no reasonable grounds which suggests that the accused is not guilty of 8 Bail App No. 75/2024 commission of offences alleged to have been committed by him and the plea raised by the counsel for the petitioner that the accused did not commit an offence or that the prosecution failed to follow the mandate of provisions of NDPS Act, 1985, inasmuch as the accused petitioner has been incarcerated for the last more than three years and delay in the trial of the case entitles the accused petitioner to bail pales into insignificance, more so in view of the settled position of law that while dealing with a bail application, the Court has to avoid consideration of details of evidence or an exhaustive exploration of the merits of the case.

9. Viewed thus, what has been observed, considered and analysed hereinabove, the instant petition is liable to be rejected. Accordingly the instant petition is dismissed. However, it is made clear that any observation made hereinabove should not be construed to be expression of any opinion qua the innocence or guilt of the accused petitioner herein in the case pending trial before the trial court. (JAVED IQBAL WANI) JUDGE Jammu 18.09.2024 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Sahil Padha 2024.09.20 12:44 I attest to the accuracy and integrity of this document