Abdul Majeed Lone v. Union Territory of Jammu and Kashmir

Judgment

1. The second instant bail application has been filed under Section 483 BNSS, on behalf of the petitioner, who has been

arrested in connection with FIR No.46/2022 registered at Police Station Jurhera, District Bharatpur (Raj.) for the offence punishable under Section 8/22 of NDPS Act. Later on, police filed charge-sheet in this matter for the offences punishable under Sections 8/22 & 8/29 of NDPS Act.

2. The first bail application (No.5734/2023) was dismissed as withdrawn by this Court vide order dated 12.12.2023 with liberty to renew the prayer of bail after recording testimony of the Seizure Officer. Now, Seizure Officer has been examined during the course of trial. Thus, this second bail application has been preferred.

3. Learned counsel for the petitioner submits that petitioner has falsely been implicated in this case. Counsel submits that petitioner was not present when recovery of 2131 bottles of cough [2025:RJ-JP:8624] (2 of 5) [CRLMB-16201/2024] syrup was made. It is submitted that the said recovery was made on 04.03.2022 from an abandoned vehicle. It is submitted that petitioner has been made accused in this case solely on the basis of information furnished by the registered owner of vehicle stating therein that vehicle is in possession of the petitioner and one power of attorney had also been executed by him in favour of the petitioner. Counsel submits that co-accused person namely- Dharmendra has been granted benefit of bail by this court. It is submitted that till date only 1 witness has been examined out of 24 cited prosecution witnesses and thus trial of the case is likely to take considerable time. There are no criminal antecedents of similar nature against the petitioner. Petitioner is in custody since

28.02.2023 and further custody of the petitioner would not serve any fruitful purpose. He has also placed reliance upon the following judgments passed by Hon'ble Apex Court as well as of this Court in which period of incarceration has been considered relevant for grant of bail:-

1. Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir (Special Leave to Appeal (Crl.) No.3961/2022

2. Amit Singh Moni Vs. State of Himachal Pradesh : Crimial Appeal No.668/2020

3. Tapan Das vs. UOI (Special Leave to Appeal (Criminal) No.5617/2021

4. Ghanshyam Sharma vs. State of Rajasthan (Special Leave to Appeal (Criminal) No.5397/2019

5. Nadeem vs State of UP (Special Leave to Appeal (Criminal) No.1524/2022

6. Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd Bail Application No.16118/2022, decided on 04.01.2023) [2025:RJ-JP:8624] (3 of 5) [CRLMB-16201/2024]

7. Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail Application No.426/2023, decided on 17.02.2023) He submits that in all these cases, bail was granted only on the ground of period of incarceration. He also relied upon the order passed by Hon'ble Apex Court in the case of Raju Ram vs State of Bihar: (2023) 1 Supreme 670 wherein it has been held that on the basis of period of incarceration, bail can be granted by relaxing the provision of Section 37 of the NDPS Act.

4. Learned Public Prosecutor opposes the submissions made by counsel for the petitioner. He submits that matter pertains to recovery of commercial quantity of contraband and considering the riquor of Section 37 of the NDPS Act, bail should not be granted to the petitioner.

5. I have considered the contentions. Perused the material available on record.

6. So far as Section 37 of the NDPS Act is concerned, it does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not be guilty is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the material collected during [2025:RJ-JP:8624] (4 of 5) [CRLMB-16201/2024] investigation.

7. As per record, the petitioner is in custody since 28.02.2023 and thus, he has suffered incarceration of almost two years till date. It also appears from the record that only one witness has been examined so far and the trial will take considerable time in its conclusion and thus, the fundamental right of the petitioner of speedy trial is also being violated. The Hon'ble Apex Court has granted bail to different accused persons by considering the period of incarceration of about two years or more.

8. Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned counsel for the petitioner; especially the fact that recovery has been made in absence of the petitioner and petitioner was arrested in this case after one year of the alleged recovery; co-accused person namely- Dharmendra has been granted benefit of bail by this court; absence of criminal antecedents of similar nature; trial of the case will take considerable time as well as looking to the custody period, but without commenting anything on the merits/demerits of the case, I deem it fit and proper to allow this second bail application.

9. This second bail application is accordingly allowed and it is directed that accused-petitioner Laxman S/o Shri Jagram shall be released on bail provided he furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to the satisfaction of the learned Trial Court with the stipulation that he shall appear before that Court and any court to [2025:RJ-JP:8624] (5 of 5) [CRLMB-16201/2024] which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.

10. It is made clear that the accused-petitioner shall not involve in any other offence(s) during currency of the bail and he shall mark his presence in first week of every month in the concerned police station.

11. Concerned SHO is directed to maintain a register recording the attendance of the petitioner, as directed above. In case the petitioner fails to mark his presence in the concerned police station, as directed above, the concerned SHO is directed to immediately report the matter to the concerned Court in this regard.

12. If any breach of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial court to cancel the bail granted to him by this Court.

13. The observation made herein above is only for decision of the instant bail application and would not have any impact on the trial of the case in any manner.

14. Learned trial court is directed to verify the fact that whether any other case under NDPS Act is registered against the petitioner. If same is found except present case, he will not accept the bail bonds furnished by the petitioner. GAUTAM JAIN /10 (ANIL KUMAR UPMAN),J