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2009 DIGILAW 579 (JK)

Ashiq Hussain Wani v. State

2009-11-23

MOHAMMAD YAQOOB MIR

body2009
1. Petitioner (accused) along with three other co-accused is facing trial before the Court of learned Sessions Judge, Kulgam for commission of offences punishable under Section 15 and 18 of NDPS Act. Three other co-accused have already been admitted to bail pursuant to order dated 9.5.2008 passed by learned Sessions Judge, Anantnag as at the relevant point of time case was pending on the file of Court of Sessions Judge, Anantnag. Thereafter it appears that with the creation of District Kulgam the cases pertaining to Kulgam including the case in hand has been transferred to the Court of Sessions Judge, Kulgam. 2. Learned Sessions Judge, Kulgam in his detailed order dated 8.7.2009 on consideration of application for grant of bail has refused to exercise discretion in favour of the petitioner even on parity basis by stating therein that the accused were involved in commission of offence relatable to the commercial quantity of narcotics. Rigour of Section 37 of NDPS Act according to the learned Sessions Judge, Kulgam would disentitle the petitioner from getting the concession of bail. In addition learned Sessions Judge has taken a view that at the time of occurrence petitioner-accused had absconded, therefore, concession of bail is not extendable to him. 3. Petitioner along with co-accused was traveling in vehicle (TATA Sumo) bearing No.9833-JK01F, at Chancer General Road was signaled to stop by the security forces. Though the driver stopped the vehicle but he along with three accused fled from the scene of occurrence. On search besides gunny bags, identity cards were recovered which belonged to the accused. 14 gunny bags each containing approximately 15 kgs poppy husk, were recovered. On conclusion of investigation, case (challan) has been presented before the Court of Sessions Judge, Anantnag. The co-accused were arrested whereas petitioner absconder was declared as a proclaimed offender. 4. Learned counsel for the respondents would contend that the petitioner on noticing grant of bail in favour of other three co-accused made himself available so as to avail the same benefit, otherwise he had remained in hiding, therefore, such persons are not entitled to any concession, bail application may be rejected. 5. 4. Learned counsel for the respondents would contend that the petitioner on noticing grant of bail in favour of other three co-accused made himself available so as to avail the same benefit, otherwise he had remained in hiding, therefore, such persons are not entitled to any concession, bail application may be rejected. 5. Learned counsel for the petitioner would contend that the petitioner for unavoidable reasons could not make himself available but his conduct is to be noticed as he of his own had surrendered before the Court where he was taken into custody and lodged in the jail. When three co-accused involved in the same case facing trial along with the petitioner are at large, the petitioner has also right to be admitted to bail. He is ready to abide by any condition as may be imposed. 6. The position of the petitioner-accused having surrendered of his own before the trial court is not denied. The position of his involvement is not different to that of co-accused. When the co-accused are at large, petitioner has also every right to be at large. After all liberty is precious. Parity as claimed by the petitioner cannot be denied to him. 7. Learned Court of Sessions Judge, Anantnag in the order dated 9.5.2008 while admitting the co-accused to bail has, without commenting on merits of the case, confined his observation to the deposition of the IO. 8. The statement of Constable Mohammad Yousuf Wani who in effect has participated in the investigation of the case, is placed on the record of Criminal Revision No.31/2009, wherein it is deposed by Mohammad Yousuf Wani Constable that in his statement recorded under Section 161 it has been attributed that from reliable sources it had surfaced that Ashiq Hussain Wani (petitioner) was driving the Sumo, same has been written by SHO of his own. In addition the statement of IO Ab. Rehman Sub Inspector is also available on the file of criminal revision, wherein he has stated that whatever proceedings he conducted in the case that was done through some Constable. 9. In light of these two statements, learned counsel for the petitioner would contend that the investigation has not been conducted properly by a competent officer. When it is not conducted by the proper officer, rights of the petitioner are seriously prejudiced. 9. In light of these two statements, learned counsel for the petitioner would contend that the investigation has not been conducted properly by a competent officer. When it is not conducted by the proper officer, rights of the petitioner are seriously prejudiced. Though it is a point not to be commented upon at this stage least the trial may get adversely affected. It is a matter to be looked into by the trial court during trial so as to see whether any prejudice is caused to the accused but at this stage it has some value for consideration of matter of bail, more particularly when co-accused on similar basis have been admitted to bail. That order has not been challenged nor any application has been moved for cancellation of such order. Therefore, petitioner cannot be deprived of that concession. 10. No doubt petitioner-accused may have made a calculated attempt to wait for the results of the bail petition of the co-accused and on noticing grant of bail has surrendered so as to avail the same benefit. He has been rightly taken into custody and lodged in the jail but now his attempt of availing concession at the very threshold has been defeated. 11. Stringent provisions which include Section 37 of NDPS Act has a laudable object i.e. fetters have been imposed on the exercise of discretion vis-a-vis concession of bail but the fetters so imposed are not untrammelled. After all factual and legal position has to be considered so as to ascertain whether curtailment of liberty shall have trappings of reasonableness. Indefinite incarceration may amount to punishing the accused before guilt is proved. It is equally true that sociological object and interests of the society are to be treated as of paramount importance. The devastating effects of the drugs have got to be controlled and curbed and the persons indulging in such activities have to be deterred. When social environment is threatened to be polluted, the persons responsible for the same have no right to be at large but once mitigating circumstances are available, then curtailment of liberty shall be violative of Article 21 of the Constitution. 12. When social environment is threatened to be polluted, the persons responsible for the same have no right to be at large but once mitigating circumstances are available, then curtailment of liberty shall be violative of Article 21 of the Constitution. 12. Weighing the case in hand in the backdrop of the facts and circumstances detailed above coupled with the concession of bail extended to the three co-accused, that too in the year 2008, it shall not be proper to decline concession to the petitioner as the same may amount to sentencing the petitioner in anticipation. 13. For the stated reasons, petitioner-accused shall be released provided he furnishes surety bond to the tune of Rs.50,000 to the satisfaction of learned Sessions Judge, Kulgam and personal bond of like amount to the satisfaction of Superintendent, Central Jail, Srinagar, with the following conditions: 1) Petitioner-accused shall ensure his presence before the trial court on each and every date of hearing except for just cause. 2) The petitioner-accused shall not in any way indulge in any activity which may be detrimental to the smooth progress of the trial before the trial court. 3) It shall be open for the State through PP to seek cancellation from the trial court of the concession granted if at any point of time circumstances of the case so warrant. 14. The observations made hereinabove shall not in any way effect the merits of the case. Bail application accordingly succeeds. Record of the Criminal Revision No.31/2009 shall be detached from this bail petition.