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2011 DIGILAW 498 (JK)

State of J&K and Ors. v. Gurmit Singh and Ors.

2011-09-16

MUZAFFAR HUSSAIN ATTAR

body2011
JUDGMENT Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge 1. FIR No. 223/04 under Section 8/ 17/ 18 of Narcotics Drugs and Psychotropic Act, 1985 (for short 'Act of 1985') was registered with Police Station Pacca Danga, Jammu. The allegations made in the FIR reveal that that on 25.22.2004 during the Naka at 1645 hours car Santro bearing registration no. 77/JK02-W red in colour came from Dogra Hall which was being driven by Charanjeet Singh and Gurmeet Singh was also sitting on the front seat. The vehicle was signaled to stop but it did not stop and fled away. On being chased by the police party the vehicle stopped at Digyana Camp near the house of Charnjeet Singh. Both the aforesaid accused persons alighted from the vehicle and ran away. The vehicle was searched and eleven packets of heroin were allegedly recovered which weighed 8 kg 894 gms. The samples were taken from the packets and sent to FSL for chemical analysis. One 12 Bore Gun along with eight live cartridges, a revolver with ten live cartridges, one Mobile No. 9906005988 and driving license of Charanjeet Singh, R. C. of the vehicle in the name of Charnjeet Singh was also recovered and seized. 2. After conclusion of the investigation, report under section 173 Cr.P.C was filed before the Court of competent jurisdiction. As the accused could not be arrested by the police during the investigation of the case report under section 173 Cr. P. C. was filed in their absence. The Court of competent jurisdiction while taking cognizance of the offence issued general warrants of arrest against the accused persons. The accused Gurmeet Singh surrendered before the trial court. An application was filed on his behalf wherein it was prayed that warrants issued under Section 512 Cr. P. C. be recalled and it was further prayed that accused be enlarged on bail. 3. Notice was issued in the said application. It was averred in the bail application by the accused Gurmeet Singh that he has been harpooned into a fabricated case. He further stated that he was being pressurized not to give evidence against the relatives of the Mr. Bajpa, MP belonging to R. S. Pura and that the vehicle belonging to the Chranjeet Sngh was lifted from the residence of Charanjeet Singh with a crane. It was also averred that mandatory provisions of Act of 1985 were not complied with. He further stated that he was being pressurized not to give evidence against the relatives of the Mr. Bajpa, MP belonging to R. S. Pura and that the vehicle belonging to the Chranjeet Sngh was lifted from the residence of Charanjeet Singh with a crane. It was also averred that mandatory provisions of Act of 1985 were not complied with. 4. In the objections, respondent-State took the plea that the drugs which were allegedly recovered from the possession of the accused do make out a case against them and that the illicit drugs which were recovered and seized are of commercial quantity and the offence committed by the accused persons is against the society and in view of the mandate contained in section 37 of the Act of 1985 accused does not deserve to be enlarged on bail. 5. Respondent no. 2 has been deleted from the array of respondents in this petition. Despite service, nobody appeared for respondent no. 1. Even learned counsel whose name is shown in the cause list chose not to appear. 6. Heard learned counsel for the petitioner. Considered the matter. 7. Mr. Bastora, learned AAG referred to the impugned bail order and submitted that learned trial Judge has not recorded any reason in allowing the bail application of the accused (respondent). Learned counsel also invited the attention of the Court to Section 37 of the Act of 1985 and submitted that unless prima facie view is taken that accused has not committed the offence he could not be enlarged on bail. Learned counsel also submitted that offence is of serious nature and its impact on the entire society is all pervasive. Learned counsel submitted that impugned order has been passed in mechanical manner. 8. Parliament in order to curb the menace of dealing with illegal drugs and in order to save society and younger generations from being rendered incapacitated by falling prey to the drug abuse came up with a legislation in the year 1985 making the offence committed under the Act of 1985 to be more stringent and the punishment to be imposed on conclusion of the prosecution case more deterrent. Section 37 of the Act of 1985 was also introduced to ensure that accused who is prima facie involved in the commission of the offence is not enlarged on bail, unless public prosecutor is given an opportunity to oppose the application for such release and 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. The limitation on granting of bail specified in Clause (b) of sub section (1) is 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 grant of bail. 9. On consideration of the impugned order, what emerges is that after referring to the arguments of the learned counsel for the parties, learned trial Judge without entering into satisfaction that there are reasonable grounds that the accused is not guilty of such offence, but on mere submission of learned counsel for the accused ordered for enlarging the accused on bail. Learned trial judge in fact has passed the bail order in breach of mandate contained in Section 37 of the Act of 1985. 10. Learned trial Judge while recording finding that there is every likelihood that accused Gurmeet Singh may not be ultimately convicted in the case, has not supported same by any reason. While considering bail application and while ordering release on bail reason briefly are to be recorded, more particularly, in the case of NDPS Act Courts are required to record reasons. This requirement of recording reasons for enlarging the accused on bail is imperative in terms of Section of the Act of 1985. 11. Learned trial Judge has only referred to argument of the learned counsel for the parties and has not recorded any reason which would enable him to enter into satisfaction that there is likelihood that accused Gurmeet Singh may not be ultimately convicted in this case. The very fact that accused Gurmeet Singh surrendered before the Court after two years of the registration of the case was one other ground to decline the bail in his favour. The very fact that accused Gurmeet Singh surrendered before the Court after two years of the registration of the case was one other ground to decline the bail in his favour. The fact that 8 kg 894 gms of heroin have been recovered from the offending vehicle and the very fact that the investigation agency has collected the evidence against the accused was sufficient at that stage to decline bail to the accused (respondent). 12. Impugned order in view of the aforestated facts suffers from lack of application of mind and is rendered illegal. 13. For the above stated reasons, this petition is allowed. The impugned order dated 11.11.2009 passed by the learned 3rd Additional Sessions Judge, Jammu is set aside. Bail and surety bonds are cancelled. Learned trial Judge is directed to take steps for taking the said accused into the custody forthwith. The accused, however, will be at liberty to file bail application, which shall be considered by the learned trial Judge on its merits.