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2018 DIGILAW 701 (JK)

Mohammad Muneeb Masoodi v. State of J&K

2018-09-07

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. In this application, the applicant has craved the indulgence of this Court in admitting him to bail for the commission of offence under Section 8/15-18 NDPS Act, on the grounds, inter alia, that he was detained by the police authorities in a case bearing FIR No. 205/2017 for the commission of the aforesaid offences registered against him at Police Station Pampore. The applicant has further stated that he has been falsely implicated in the case. The mandatory provision of the NDPS Act, have been violated in the case with impunity and, therefore, the detention of the applicant is illegal and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The applicant has further contended that he has been in custody for the last more than nine months by now and his continued detention has hampered him from proving his innocence. It is further alleged that the narcotic substance was recovered from a passenger vehicle which he was driving at that moment. A number of passengers boarded and de-boarded from the said vehicle at different stops, and therefore, the commission of the crime could not have been imputed to him. He will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on him, in case he is admitted to bail. In the premises, the applicant has urged that he be admitted to bail for the commission of the aforesaid offences. 2. The respondent, despite availing umpteen opportunities, have failed to file the objections. 3. Heard and considered. 4. What requires to be stated at the outset is that the applicant moved an application for bail before the learned Sessions Judge at Pulwama. The same was transferred to the Court of the learned Additional Sessions Judge, Pulwama. The learned Judge after taking an overall view of the application came to the conclusion that a commercial quantity of the drugs has been recovered from his possession and, therefore, he cannot be admitted to bail. The applicant, however, has repeated and reiterated that the quantity of drugs seized in the case is lesser than a commercial quantity but greater than a smaller one and, therefore, he is entitled to bail. 5. The applicant, however, has repeated and reiterated that the quantity of drugs seized in the case is lesser than a commercial quantity but greater than a smaller one and, therefore, he is entitled to bail. 5. The apex Court of the country in the case of E Micheal Raj v. Narcotic Control Bureau reported in (2008) 5 SCC 161 , while examining whether it is the pure content of the drug or the entire mixture that has to be taken into consideration in determining whether the same falls within the parameters of the small, medium or commercial quantity, held as under: It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment. 6. In the wake of the above judicial precedent, if any narcotic drug or psychotropic substance is found mixed with one or more neutral substances, it is only the actual content by weight of the narcotic drug and psychotropic substance that has to be taken into consideration while determining whether the same falls within the scales of a small quantity, a commercial quantity or an intermediary one. In order to mitigate the rigor of the judicial dictum cited above and its application to a given case, the central Government issued a notification bearing No. S.O. 2941 (E) : dated 18.11.2009, which makes the following amendment in the Notification S. O. 1055 (E) : dated 19th October, 2001: "In the Table at the end after Note 3, the following Note shall be inserted, namely:-"(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substance of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content." 7. On the face of the notification cited above, it is not the pure content of the drug that has been taken into consideration but the entire mixture of any solution or any one or more narcotic drugs including salts of esters, ethers and isomers, wherever existence of such a substance is possible and not just its pure drug content. The notification makes it abundantly clear that the entire quantity of drug has to be taken into consideration in assessing and evaluating whether the same falls within the definition and scope of the commercial quantity or the small quantity or an intermediary one. 8. The notification makes it abundantly clear that the entire quantity of drug has to be taken into consideration in assessing and evaluating whether the same falls within the definition and scope of the commercial quantity or the small quantity or an intermediary one. 8. In exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527 (E) : dated 16th July, 1996, except in respect of things done or omitted to be done before such supersession, the Central Government specified the quantity mentioned in columns 5 and 6 of the Table, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the purpose of the said clauses of that section. Column 5 provides that a quantity upto 1000 gms falls within the parameters of small quantity and a quantity of 50 Kgs falls within the scales of commercial quantity. The quantity of narcotics substances recovered from the possession of the applicant, therefore, falls within the scales of a commercial quantity to which the rigor of Section 37 of the NDPS Act applies in all the fours. If a case falls within the scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility of the said provision in addition to other limitations prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as follows: "[37. If a case falls within the scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility of the said provision in addition to other limitations prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as follows: "[37. Offences to be cognizable and non-bail able;- (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 27A 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,]." 9. From the perusal of Section 37 quoted above, it is evident that no person can be enlarged on bail, if he is found to be in the possession of a commercial quantity of Narcotics and Psychotropic Substances Act or offences under Section 19 or Section 24 or Section 27A Act unless the Court comes to the conclusion that the accused is not guilty of such an offence. These restrictions are provided in addition to the checks and curbs imposed under the Code of Criminal Procedure or any other law governing the grant of bails. In the present case, as is reiterated here, the applicant has been found to be in the possession of 55 Kgs of Fuki. On the basis of the recovery of such a huge quantity of narcotics substances found in the possession of the applicant, it can well be said that the applicant is prima facie involved in the commission for the offences aforesaid and there is no reasonable ground to believe that he is not guilty of such offences. On the basis of the recovery of such a huge quantity of narcotics substances found in the possession of the applicant, it can well be said that the applicant is prima facie involved in the commission for the offences aforesaid and there is no reasonable ground to believe that he is not guilty of such offences. The natural or unpresentable human propensity to always eat the forbidden fruits will ever find means and ways to frustrate the laws and rules prohibiting the use of all such stuff. 10. Looking at the instant case from another perspective, there has been absolutely no change in the circumstances of the case from the date of the order of the trial Court till such time that the bail application has been moved before this Court. It is well settled law that no successive application for bail can be allowed/entertained unless and until there has been a change in the circumstances of the case. No doubt, the principle of res-judicata does not have its application to the bail applications but the Court has to peep deep to see whether there has been any perceptible change in the circumstances of the case and in case it is not found to be so, the filing of a successive application will lead to a bad precedent. An order rejecting an application of bail would not per se close the doors of the applicant in moving another application on a subsequent occasion but the condition precedent is that there should be some fresh material and further developments in the case as will impel and actuate the Court to consider the successive application for bail. There is no legal bar in entertaining the subsequent application if it is pointed out that there has been a change of substantial nature in the facts and circumstances of the case since the date of passing the earlier order. Nothing to substantiate so has been stated in the application on hand. 11. In view of the preceding analysis, there appears to be no merit and substance in the application of the applicant. The same entails dismissal and is, accordingly, dismissed. The applicant shall be at liberty to move a fresh application for the grant of bail in his favour before the trial Court which shall be decided on its merits. 12. A copy of this order shall be sent to the learned Trial Court.