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2020 DIGILAW 453 (JK)

Khurshid Ahmad Wani v. Union Territory of JK

2020-09-01

ALI MOHAMMAD MAGREY

body2020
JUDGMENT This Criminal Revision is directed against the order dated 25th of July, 2020, passed by the Court of learned Principal Sessions Judge, Bandipora, in case titled ‘State v. Showkat Ahmad Parray & Ors.’, whereby the interim bail granted in favour of the petitioner by the said Court, in terms of order dated 30th of June, 2020, stands cancelled on the ground of the petitioner having violated the terms and conditions prescribed by the Court for the said interim bail. 2. The material facts leading to the filing of the instant Criminal Revision, as stated by the petitioner in his Revision petition, are that pending trial in case titled ‘State v. Showkat Ahmad Parray & Ors’; bearing FIR No. 03/2020 for the commission of offences punishable under Sections 8/21 and 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), before the Court of learned Principal Sessions Judge, Bandipora, the petitioner claims to have approached the learned trial Court with an application for seeking his release on interim bail on the ground that his wife had to undergo some surgery and that there was no one in his home to make arrangements for the said surgery of the wife of the petitioner. The learned trial Court, in terms of order dated 30th of June, 2020, admitted the petitioner to short term bail till 14th of July, 2020, subject to the rider that the petitioner will surrender before the Court on 14th of July, 2020 without any fail and, that in default thereof, the benefit of bail allowed to the petitioner shall stand withdrawn and the Police would be at liberty to immediately arrest him without any further order from the Court. Thereafter, as stated, another application seeking extension in the interim bail so granted by the learned trial Court, in terms of order dated 30th of June, 2020, was filed on behalf of the petitioner. The said application, in terms of order dated 25th of July, 2020, stands rejected by the learned trial Court on the ground of the petitioner having failed to surrender before the Court, thereby violating the terms and conditions prescribed in the order dated 30th of June, 2020. The said application, in terms of order dated 25th of July, 2020, stands rejected by the learned trial Court on the ground of the petitioner having failed to surrender before the Court, thereby violating the terms and conditions prescribed in the order dated 30th of June, 2020. Besides, the learned trial Court directed its office to issue non-bailable warrants of arrest against the petitioner with a further direction to the Station House Officer (SHO) concerned to execute the warrants and produce the petitioner before the Court on or before the next date of hearing. It is this order passed by the learned trial Court that has been assailed by the petitioner through the medium of this Criminal Revision. 3. When this matter was taken up on motion hearing, i.e., on 13th of August, 2020, this Court, while issuing notice to the learned Advocate General, having regard to the fact that the petitioner was facing trial in connection with a heinous offence of ‘Drug Trafficking’; having far reaching consequences on the very fabric of the Society, directed the Senior Superintendent of Police (SSP), Bandipora, to arrest the petitioner and lodge him in Central Jail, Srinagar. Thereafter, the matter was listed on 17th of August, 2020, on which date, the learned Advocate General appeared through Virtual mode and submitted that he has prepared a detailed note on the issue involved with the support of relevant law as enunciated by Hon’ble the Supreme Court of the country and that same stands forwarded to the Bench Secretary of this Court through Mr Sajad Ashraf Mir, learned Government Advocate. However, since the said note was not available with the records of the file on that date, this Court, while adjourning the case to 24th of August, 2020, directed Mr Sajad Ashraf Mir, learned Government Advocate, to make available before the Court the said note prepared by the learned Advocate General on the next date of hearing through the learned Registrar (Judicial). Subsequently, on 24th of August, 2020, the detailed note prepared by the learned Advocate General was attached with the records of the file and this Court, accordingly, finally heard the arguments on behalf of the parties and reserved the orders thereon. Subsequently, on 24th of August, 2020, the detailed note prepared by the learned Advocate General was attached with the records of the file and this Court, accordingly, finally heard the arguments on behalf of the parties and reserved the orders thereon. It is pertinent to mention here that the petitioner, pursuant to directions of this Court, has been re-arrested on 14th of August, 2020 by the concerned police authorities and lodged in Central Jail, Srinagar. 4. At the very outset, what requires to be stated herein this case is that the order dated 30th of June, 2020; whereby the interim bail was granted in favour of the petitioner by the Court of learned Principal Sessions Judge, Bandipora, was passed by the said Court not only in complete violation of the mandate of Section 37 of the NDPS Act, but also without having any regard to the law governing the subject, as laid down by various Courts of the country, including the Hon’ble Apex Court. It is well settled legal position that in the matters of grant of bail in connection with cases falling under the NDPS Act, neither there is any space for compassion/ sympathy nor is there any scope for having a kind or liberal approach qua the accused and that bail, in such cases, can only be granted where there are reasonable grounds for believing that the accused is not guilty of the offence attributed to him/ her and that he/ she is not likely to commit any offence while on bail. 5. The scheme of Section 37 of the NDPS Act emphasizes that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure, but is also subject to the limitation placed by Section 37 of the NDPS Act which commences with a ‘non-obstante’ Clause. The operative part of the said Section is in the negative from prescribing the enlargement of bail to any person accused of commission of an offence under the NDPS Act, unless twin conditions are satisfied. The first condition is that the Prosecution must be given an opportunity to oppose the application; and the second, is that that the Court concerned must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence. The first condition is that the Prosecution must be given an opportunity to oppose the application; and the second, is that that the Court concerned must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 6. The expression ‘reasonable grounds’ means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence imputed to him/ her. The reasonable belief, contemplated in the provision, requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the Court below seems to have completely overlooked the underlying object of Section 37 of the NDPS Act that, in addition to the limitations provided under the Code of Criminal Procedure, or any other law for the time being in force regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. The grounds/ reasons for admitting the petitioner to bail do not, in any manner whatsoever, fall within the ambit of the scheme of the NDPS Act, and, thus, the very jurisdiction exercised by the learned Court below while granting interim bail to the petitioner is beyond the mandate of the NDPS Act itself. 7. Apart from the above, the NDPS Act is a special legislation enacted by the Parliament aimed at curbing the ever-increasing menace of ‘Drug Trafficking’ which, if not checked, has the potential of not only seriously destroying the public health, but also the health of the nation as a whole. The aforesaid legislative mandate, therefore, is required to be adhered and followed by all concerned in its letter and spirit. It is to be borne in mind that in murder cases, the accused commit murder of one or two persons only, while those who are dealing in drugs are instrumental in causing death or inflicting death blow to a number of vulnerable innocent youths. Such persons are a hazard to the society and they, even if released temporarily, in all probability, are likely to continue their nefarious activities of trafficking and/ or dealing in intoxicants clandestinely. Such persons are a hazard to the society and they, even if released temporarily, in all probability, are likely to continue their nefarious activities of trafficking and/ or dealing in intoxicants clandestinely. In this backdrop, the Courts, while dealing with these matters, are required to have due regard to the harmful socio-economic consequences as well as the health hazards which accompany this menace of trafficking illegally in dangerous drugs and ensure implementation of the law in the same spirit with which it has been enacted by the Parliament. 8. In view of the preceding analysis, I am of the considered view that the order dated 30th of June, 2020 passed by the learned trial Court; admitting the petitioner to interim bail, cannot withstand the test of law governing the subject and, therefore, as a necessary corollary thereto, there is no question of setting aside the subsequent order dated 25th of July, 2020 passed by the learned trial Court; whereby the interim bail granted in favour of the petitioner has been cancelled, and extending the interim bail granted in favour of the petitioner. That being so, the instant Criminal Revision fails and shall stand dismissed accordingly, alongwith all connected Crl. Ms. The learned trial Court is directed to proceed ahead with the trial of the case and take the same to its logical conclusion expeditiously, in accordance with the law governing the subject. 9. Before parting with the file, I may hasten to add here that the menace of ‘Drug addiction’ is a complex illness with far reaching consequences for those who know, work with, and support the drug addicted individual(s). Families suffer due to the cultural and social factors of drug behaviour, including their own understanding of the disease process and the addict’s behaviour due to drug abuse; draining of family resources; shrinking from responsibilities, sickness and dysfunctional relationships; distortion of interpersonal family relationships; violence and death faced as a consequence of drug abuse, etc. The cost of drug abuse is enormous and multifaceted which poses severe threat to the very social fabric of the Society and, thus, the instances of drug abuse are required to be dealt with a strict ‘Hard on Crime’ attitude. Besides, the trafficking/ smuggling of drugs has flared sporadically in the recent years transcending geographical boundaries. The cost of drug abuse is enormous and multifaceted which poses severe threat to the very social fabric of the Society and, thus, the instances of drug abuse are required to be dealt with a strict ‘Hard on Crime’ attitude. Besides, the trafficking/ smuggling of drugs has flared sporadically in the recent years transcending geographical boundaries. Realizing the danger of this menace, the Hon’ble Apex Court has been repeatedly reminding/ advising the Courts that taking a liberal approach is uncalled for while exercising the power to grant bail in cases falling under the NDPS Act. At this stage, I express my appreciation and gratitude for the valuable assistance rendered by the learned Advocate General in the matter on the asking of the Court. 10. Registry to forthwith send a copy of this order to the Court below where the trial of the case is pending.