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2020 DIGILAW 596 (JK)

Ghulam Mohammad Mir v. Union Territory of Jammu and Kashmir

2020-11-13

ALI MOHAMMAD MAGREY

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Order Ali Mohammad Magrey, J.—The applicant, namely, Ghulam Mohammad Mir S/o Mohammad Subhan Mir R/o Shilvat, Sumbal, Bandipora, accused in case bearing FIR No. No.04/2020 registered by Police Station, Sumbal, Bandipora, for the commission of offence(s) punishable under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act of 1985”), during the pendency of the trial of the aforesaid case before the Court of competent jurisdiction, approached the Court of learned Principal Sessions Judge, Bandipora, for seeking his release on bail on medical grounds in view of his deteriorating health condition and, in terms of order dated 17th of June, 2020, the learned Sessions Court admitted the applicant-accused to bail with a further stipulation that the he shall surrender back on 29th of June, 2020. Thereafter, this interim bail was extended from time to time by the Court below, however, on 10th of July, 2017, since the Court below held that the applicant-accused will not be granted any further extension in bail, as such, the applicant-accused approached this Court through the medium of petition under Section 439 of the Code of Criminal Procedure, being BA No. 58/2020, seeking extension in bail already granted to him by the Court below. When the said bail application came up for consideration before this Court on the very motion hearing, i.e., on 24th of July, 2020, this Court extended the interim bail granted by the Court below in favour of the applicant-accused. On 17th of August, 2020, however, this Court directed the Senior Superintendent of Police (SSP), Bandipora to take the applicant-accused in custody and handover the same to the Superintendent, Central Jail, Srinagar with a direction to the Superintendent, Central Jail, Srinagar, to take the custody of the applicant-accused from the Senior Superintendent of Police (SSP), Bandipora, after complying with all the protocol in vogue for containing the spread of Covid-19 Pandemic. The Superintendent, Central Jail, Srinagar was also directed to get the applicant-accused medically examined and provide him all the necessary treatment as may be required for him as per medical advice and in keeping with the mandate of Jail Manual. 2. The Superintendent, Central Jail, Srinagar was also directed to get the applicant-accused medically examined and provide him all the necessary treatment as may be required for him as per medical advice and in keeping with the mandate of Jail Manual. 2. Thereafter, the applicant-accused filed another application before this Court, being CrlM No. 754/2020, seeking grant of bail in his favour on medical grounds in the aforesaid case registered against him, more specifically in view of the medical advice given to him by the Medical Officer, District Hospital, Bandipora, vide certificate dated 4th of September, 2020, in terms whereof the applicant-accused has been advised to undergo surgery for ‘Acute Cholelithiasis’. 3. When the aforesaid application was listed before this Court on 10th of November, 2020, the Court, while issuing notice to the other side, directed the concerned Jail Superintendent to get the applicant-accused medically examined by a Medical Board and report compliance by 12th of November, 2020. 4. On 12th of November, 2020, Mr B. A. Dar, the learned Senior Additional Advocate General, appearing on behalf of the respondent-Union Territory of Jammu and Kashmir, produced a communication bearing No. CJS/MJ/2020/3928 dated 11th of November, 2020, issued by the Senior Superintendent, Central Jail, Srinagar, informing therein that the applicant-accused is scheduled to be examined by Medical Board on 12th of November, 2020. Given this position, the matter was directed to be listed on 13th of November, 2020, i.e., today for further proceedings. 5. Today, when the matter came up for consideration before the Court, Mr Dar produced communication bearing No. CJS/MJ/UT/2020/3934 dated 12th of November, 2020, issued by the Senior Superintendent, Central Jail, Srinagar, annexing therewith the report of the Medical Board constituted for examining the applicant-accused in compliance of the directions passed by this Court. 6. Perusal of the report of the Medical Board so constituted reveals that the applicant-accused has been examined and it has been found that no ‘Cholelithiasis’ or any other mass is present in the Gall Bladder of the applicant-accused, as such, the applicant-accused is suffering from no surgical disease and does not require any surgical intervention at the present moment. Copy of the communication dated 12th of November, 2020, alongwith the report of the Medical Board, so produced is taken on record. 7. Copy of the communication dated 12th of November, 2020, alongwith the report of the Medical Board, so produced is taken on record. 7. When confronted with the above position, Mr M. S. Reshi, the learned counsel for the applicant-accused, submits that the main bail application, alongwith the subsequent CrlM No.754/2020, may be disposed of giving liberty to the applicant-accused to approach the Court of competent jurisdiction for seeking regular bail on the grounds as may be available to the applicant-accused in accordance with the law governing the subject. The learned counsel contends that the alleged quantity of contraband recovered from the applicant-accused, even if taken to be correct, falls within the ‘intermediate quantity’ as it is greater than the ‘small quantity’ and lesser than the ‘commercial quantity’ prescribed in the Act of 1985, as such, the rigor of Section 37 of the Act of 1985 is not applicable to the case of the applicant-accused thus, the applicant-accused is entitled to be enlarged to bail in the aforesaid case registered against him. 8. Without commenting upon the merits of the aforesaid submission made by the learned counsel for the applicant-accused qua admitting the applicant-accused on regular bail, it is thought just and proper to take on board the main bail application and dispose of the same as well as the subsequent application bearing CrlM No.754/2020 with liberty to the applicant-accused to approach the Court of competent jurisdiction for seeking regular bail in connection case bearing FIR No. 04/2020 registered in Police Station Sumbal, for the commission of offence punishable under Section 8/22 of the Act of 1985 on the grounds as may be available to the applicant-accused in terms of the law governing the field. 9. I order accordingly. 10. BA No.58/2020 disposed of as above, alongwith the connected CrlM No.754/2020. 11. Copy of this order be provided to the learned counsel for the applicant-accused under the Seal and Signatures of the Bench Secretary/ Reader of this Court, today itself.