App No. 265/2022 CRM (M) 627/2022 CrlM No. 1293/2022 Gowhar Ahmad Itoo v. UT of J&K Through In-Charge/SHO Police Station, Ramban

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 2 Bail App No. 265/2022 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. 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. 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

5. 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 3 Bail App No. 265/2022 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 4 Bail App No. 265/2022 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. Jammu : 21.10.2023 Pawan Chopra (PUNEET GUPTA) JUDGE PAWAN CHOPRA 2023.10.21 16:18 I attest to the accuracy and integrity of this document