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2021 DIGILAW 160 (JK)

Khair Mohd. Ahangar v. Union Territory of J&K

2021-04-08

SANJAY DHAR

body2021
JUDGMENT : 1. The petitioner has filed the instant application for grant of bail in crime case No.07/2019 for offence under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 985 (“the NDPS Act” for short) registered by the Narcotics Control Bureau (NCB), Jammu. 2. Before coming to the application, let me give brief facts of the prosecution case, that have led to the filing of the instant application. 3. As per the prosecution case, on 21.12.2019 Intelligence Officer of the NCB received a secret information from reliable sources that the petitioner is coming from Kashmir valley and is carrying huge quantity of 'charas'. On receipt of this information, a team was constituted by the NCB and the team spotted the petitioner near Gumat Bazar at Samrat Hotel, Bus Stand, Jammu. The petitioner was stopped and upon his personal search, 5.050 kgs of 'charas' was recovered from his possession. Statement of the petitioner under Section 67 of the NDPS Act was recorded, where-after he was taken into custody. After recording statement of the petitioner, involvement of another accused namely Bashir Ahmed Ganie also surfaced and he was also taken into custody. 4. It appears that the co-accused-Bashir Ahmed Ganie has been enlarged on bail by the learned Trial court vide its order dated 10.07.2020 whereas similar treatment has been denied to the petitioner and his application has been declined vide order dated 08.09.2020 passed by the learned Trial Court. 5. The petitioner has filed the instant bail application on the ground that the co-accused in the case has already been granted bail by the Trial Court and, as such, on the ground of parity he is also entitled to bail. It is further contended that in the instant case the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been adhered to by the Investigating Agency and that on this ground also the petitioner is entitled to grant of bail. It is also contended that the statement made by the accused under Section 67 of the NDPS Act before an officer of the NCB is not admissible in evidence and as such, there is no material with the Investigating Agency to implicate the petitioner in the alleged crime. 6. I have heard learned counsel for the parties and perused the material on record. 7. 6. I have heard learned counsel for the parties and perused the material on record. 7. The first ground urged by learned counsel for the petitioner is that on parity the petitioner is entitled to grant of bail as the co-accused has already been enlarged on bail by the Trial Court. On this basis, it is urged that the order refusing bail to the petitioner passed by the Trial Court is not in accordance with law. 8. If we have a look at the material on record, it would come to fore that co-accused-Bashir Ahmed Ganie has been implicated in the case solely on the basis of statement made by the petitioner under Section 67 of the NDPS Act. The recovery of contraband has not been effected from the said accused. The Supreme Court in the case of Tofan Singh v. State of Tamil Nadu (Criminal Appeal No. 152 of 2013) decided on 29.10.2020 has in categoric terms held that an officer of NCB is deemed to be a police officer within the meaning of Section 25 of the Evidence Act and, as such, a statement made before such officer is not admissible in evidence. It is on the basis of this reasoning that that the learned Trial Court, while admitting the co-accused-Bashir Ahmed Ganie on bail, has observed that there are reasonable grounds for believing that the said accused is not guilty of such offence and that he is not likely to commit any such offence while on bail. 9. When we compare the case of the petitioner with the case of co-accused, Bashir Ahmed Ganie, it is found that the allegation against the petitioner are not only based upon his confessional statement made under Section 67 of the NDPS Act but the same is further supported by the actual recovery of 5.050 kg of charas from his possession. The recovery has been witnessed by the seizing officer Sh. Parkash Ram, Intelligence Officer and other witnesses. Thus, there is admissible evidence on record to show the involvement of petitioner in the alleged crime. The case of the petitioner is, thus, quite distinct from the case of co-accused, Bashir Ahmed Ganie. 10. The recovery has been witnessed by the seizing officer Sh. Parkash Ram, Intelligence Officer and other witnesses. Thus, there is admissible evidence on record to show the involvement of petitioner in the alleged crime. The case of the petitioner is, thus, quite distinct from the case of co-accused, Bashir Ahmed Ganie. 10. So far as the contention of learned counsel for the petitioner that Sections 42 and 50 of the NDPS Act being mandatory in nature and same have not been adhered to by the Investigating Agency, is concerned, the merits of the same cannot be determined in these proceedings. As per the complaint filed by the respondent against the petitioner, a copy whereof is on record, notice under Section 50 of the NDPS Act was served upon the petitioner and an option was given to him to be searched in presence of nearest Magistrate or gazetted rank officer. As per the complaint, option was not exercised by the petitioner. The question, whether notice was actually served upon the petitioner and whether he did not exercise the option despite receipt of the notice, are matters of trial and cannot be determined at this stage in these proceedings. 11. The Supreme Court in the case of Superintendent Narcotics Control Bureau v. R. Paulsamy, AIR 2000 SC 3661 , has clearly observed that under Section 37 of the NDPS Act, no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. Para 6 of the judgment shall be advantageous to be quoted herein below:- “6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections.” 12. From the aforesaid enunciation of law, it is clear that the issue whether mandatory provisions of Sections 42 and 50 of the NDPS Act have been violated by the respondent in the instant case can be determined only during trial of the case and not in these proceedings. 13. A per the allegations made by the respondents, recovery of commercial quantity of charas was effected from the possession of the petitioner, therefore, the bar to grant bail as contained in Section 37 of NDPS Act is squarely applicable to the facts of the instant case. The petitioner has been unable to persuade this Court to hold that there are reasonable grounds for believing that he is not guilty of offence under NDPS Act. Therefore, he does not deserve the concession of bail. 14. For the foregoing reasons, the application is found to be without merit and the same is, accordingly, dismissed.