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2017 DIGILAW 936 (JK)

Pawan Kumar v. State

2017-10-12

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. 1. Through the present bail application, the Petitioner-Pawan Kumar, seeks bail, inter alia, on the ground that on refusal to admit the petitioner on bail in FIR No. 07/2016 for offence under section 8/20/29 of NDPS Act by the learned Principal Sessions Judge, Ramban, vide order dated 03.03.2017, has led the petitioner to approach this Court for grant of bail. Learned counsel for the petitioner has stated that on 18.01.2016 an FIR No. 07/2016 came to be registered with the P/S, Banihal against the petitioner for recovery of Cannabis (Charas) for commission of offence under section 8/20 of NDPS Act, which resulted into the arrest of the petitioner on the same day and now is in judicial custody for more than 15 Months. The aforesaid FIR culminated into the presentation of challan before the Learned Principal Session Judge, Ramban. That on 22.04.2016 the Ld. Principal Sessions Judge, Ramban framed the charge u/s. 8/20 of NDPS Act, against the petitioner herein and the prosecution was directed to produce evidence and more than 18 opportunities have been taken by the prosecution to produce the witnesses before the trial court and they have only produced one witness namely Sh. Ashfaq Hussain (PW-3) and has totally contradicted the prosecution versions from wherein can be reasonably believed that the petitioner has not committed any offence. 2. Learned counsel has stated that the bail application filed by the petitioner has been dismissed on 03.03.2017 only on the ground that contraband is commercial quantity although the same from the facts of the case is not so and rigor of section-37 does not apply, yet not finding with regard to same has been given by the lower court. That the petitioner is the permanent resident of Reasi Distt. and driver by profession having deep roots in the society being respectable person in the society and if the petitioner is not admitted to bail, it will lower down the image of the petitioner/s in the society and there is special provision in the Cr.P.C. for admitting the bail to young persons and also first offender and of young age as there is no such allegation by the prosecution that the petitioner is involved in any other case and further there is no chance of fleeing from the trial. 3. 3. Learned counsel has further stated that since the weight of the contraband seized by the police has not been done in the present case which determines the quantity of the contraband and also the rigor of section 37 of NDPS Act, yet from the facts alleged in the challan, the weight of the contraband along with the maize cobs has been done which is about 1.05 Kg and commercial quantity as per the schedule is above 1 Kg and it is the weight of contraband only which determines the contraband, as commercial quantity, small quantity or intermediate quantity and not the weight of the contraband along with the article in which it is carried and therefore certainly the weight of 65 maize cob has been included in the weight done by the prosecution and therefore the contraband certainly does not fall under the commercial quantity as such the rigor of section 37 is not applicable in the present case, as such the petitioner is entitled to bail. 4. Learned counsel has stated that it is settled law, as to when the bail is granted in non-bailable offences and there are two categories, as held by Apex Court in one of its basic judgment reported in AIR 1978 SC 179 . First Category are those offences which carry punishment of death sentence and life imprisonment exclusively and in those case the ball can be granted only when the Hon'ble Court comes to the conclusion that there are reasonable grounds of believing that the accused is not guilty of offence alleged and then only the accused is entitled to bail, whereas in all other non-bailable offences, the Apex Court has held that the judicial discretion will always be exercised by the court in favour of granting bail subject to sub-section (3) of section 437 of Cr.P.C. (Central) with regard to imposition of conditions, if necessary and keeping in view the said settled law, the present petitioners are also entitled to be admitted to bail. That the offences involved is neither punishable to death sentence or life imprisonment exclusively, as such, the petitioners are entitled to bail in view of the law laid down by the Apex Court that bail is rule and jail is exception and there is no bar for admitting the petitioners to bail even in terms of section 37 of the NDPS Act as stated above. 5. 5. Learned counsel has submitted that the petitioner is the respectable citizen and has no intension either to flee away from the process of law or to avoid his appearance before the court and detention of the accused for the last nearly 15 months without any trial amounts to punishment before holding him guilty under law, which is violative of article 21 of the Constitution. That the petitioner undertakes to abide by all the conditions imposed by the Hon'ble Court while granting bail in favor of the petitioner. Petitioner further undertakes to furnish bail bonds and personal bonds to the satisfaction of the Hon'ble Court and also undertakes to remain present on each and every date before trial court. That the petitioner further undertakes not to leave the territory of the State/Country without the permission of the Hon'ble Court. That there is no likelihood of or otherwise of the accused/petitioner absconding or attempting to temper with the prosecution evidence as all of the witnesses have already deposed before the I.O. which are rather beyond the control of the petitioner because all the witnesses are official witnesses and the apprehension of the prosecution for hampering the investigation or winning over the prosecution witness is without any evidence or record, therefore the petitioner is entitled to bail. That the petitioner is also entitled to be released on bail on the ground that the petitioner cannot be punished without giving them/him fair opportunity to defend the case properly which he cannot do while in custody and therefore further detention of the petitioner will be against the mandate of article 21 of the Constitution. 6. It is submitted that the petitioner has been taken into custody from Busy Market being a public place and no civil witness has been associated with the search and seizure of the contraband which clearly demonstrates that the police has not followed mandatory provisions of NDPS Act and thus is entitled to be admitted to bail. 7. With the aforementioned submissions, learned counsel for the petitioner has prayed that the present bail application of the petitioner be allowed by admitting him to Bail, or any other appropriate order or direction as the Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 8. On the other hand, learned Dy. 7. With the aforementioned submissions, learned counsel for the petitioner has prayed that the present bail application of the petitioner be allowed by admitting him to Bail, or any other appropriate order or direction as the Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 8. On the other hand, learned Dy. Advocate General has opposed the bail application stating that the bail application is not maintainable and deserves to be dismissed as being premature and without substantial change of circumstances between the earlier application filled by the petitioner before the Principal Sessions Judge, Ramban, which has been dismissed on 03.03.2017 and the present application filed before this Hon'ble Court, as such, the application is not maintainable and deserves to be dismissed. That the present bail application is misconceived in as much as the same is not maintainable and deserves to be dismissed out rightly as the petitioner is involved in heinous offence and the contraband recovered from him falls in commercial quantity. That the bail application of the petitioner is not maintainable as the same has been filed by suppressing the real facts of the case, as such, bail application deserves to be dismissed. It is further submitted that the petitioner has no legal right to seek bail in FIR No. 07/2017 registered at Police Station, Banihal under sections 8/20 of NDPS Act. That the above titled bail application is not maintainable and deserves to be dismissed as the accused/petitioner is involved in very heinous offences under sections 8/20 NDPS Act. An FIR bearing No. 07/2016 has been registered in Police Station, Banihal under sections 8/20 NDPS Act. That during investigation a prima facie case has been made out against the accused/petitioner under sections 8/20 NDPS Act, the application for bail deserves to be dismissed on the ground that the petitioner may tamper with the prosecution evidence, threaten or win over the prosecution witnesses. Learned Dy. AG has prayed that the application filed by the petitioner for bail be dismissed. 9. Heard learned counsel for both the sides and considered the law on the subject. 10. From the perusal of facts of case, it is evident that accused has been found in possession of 1.05 KG of charas, which is commercial quantity. 11. Section 37 Cr.P.C. reads as under:- "37. 9. Heard learned counsel for both the sides and considered the law on the subject. 10. From the perusal of facts of case, it is evident that accused has been found in possession of 1.05 KG of charas, which is commercial quantity. 11. Section 37 Cr.P.C. reads as under:- "37. Offences to be cognizable and non-bailable;-(1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974)- (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 limitations 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." 12. From the perusal of this section, it is evident that no person can be enlarged on bail, if he is found in possession of commercial quantity of Narcotics and Psychotropic Substances Act or offences under Section 19 or Section 24 or Section 27-A Act unless court comes to the conclusion that accused is not guilty of offence. These restrictions are in addition to restrictions imposed under section 497 Cr.P.C. In the present case, accused has been found in possession of 1.05 KG of charas; its small quantity is 100 gm and commercial is 1 kg and above as per schedule of Act. The accused has been found in possession of quantity, which is commercial in nature. 13. These restrictions are in addition to restrictions imposed under section 497 Cr.P.C. In the present case, accused has been found in possession of 1.05 KG of charas; its small quantity is 100 gm and commercial is 1 kg and above as per schedule of Act. The accused has been found in possession of quantity, which is commercial in nature. 13. The main ground taken by counsel for petitioner is that the weight of the contraband along with the maize cobs has been done, which is about 1.05 Kg and commercial quantity as per the schedule is above 1 Kg; that it is the weight of contraband only which determines the contraband as commercial quantity or small quantity or intermediate quantity and not the weight of the contraband along with the article in which it is carried. Therefore certainly, if the weight of 65 maize cobs is excluded then weight of contraband would be less than commercial quantity and rigor of section 37 would not be applicable in the present case, as such the petitioner is entitled to bail. This ground does not hold well, because this court is neither trial court nor investigating agency. This court cannot imagine on its own as to what would be weight of maize cobs, so as to exclude it from total quantity of contraband. The trial is already going on; counsel for petitioner has right to ask from FSL or I/O about this aspect of matter. The menace of drugs has caused serious threat to society and has ruined the future of young persons. The person involved in such activity cannot claim bail as matter of right. Such accused has to be dealt with iron hand. At this stage, Court is not satisfied that there are reasonable grounds for believing that accused is not guilty of such offence. Hence, this petition is dismissed at this stage.