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2021 DIGILAW 228 (JK)

Abdul Majid v. Union Territory of J&K

2021-05-17

SANJEEV KUMAR

body2021
Judgment 1. The petitioner is one of the accused in FIR No.90/2019, which, after investigation, is pending trial before the Court Sessions Judge, Ramban [“the Trial Court”]. On the plea that the petitioner was not named in the FIR and was also not arraigned as an accused in the challan bearing No.178/2019, which was initially presented before the Trial Court, the petitioner moved a bail application before the Trial Court seeking his release from the judicial custody. 2. The application for bail filed by the petitioner was contested by the prosecution and the same was dismissed by the Trial Court vide its order dated 15.01.2021. As is apparent from order dated 15.01.2021 passed by the Trial Court, the petitioner was not held entitled to release on bail in view of his involvement in the commission of offence under Sections 8/20/29 of NDPS Act involving recovery of commercial quantity of charas weighing 10 kg and 50 gms. Aggrieved, the petitioner has moved this Court for his release on bail in the aforesaid FIR/challan on the ground that there is no evidence on record, which could connect the petitioner with the commission of offence, alleged in the FIR/challan. It is also contended that the basis of involvement of the petitioner in the commission of offence is a confessional statement made by the co-accused-Mod. Qasim, from whose possession the contraband was recovered, which is not admissible in evidence. 3. Before I advert to the grounds on which the petitioner seeks concession of bail, it is necessary to allude to the prosecution version. As per the prosecution, on 28.04.2019, ASI Mohd. Rashid along with Constables Riaz Ahmed, Mushtaq Ahmed and SPOs Hoshiar Singh, Mohd. Akram, Om Parkash and Avtar Singh were performing naka duty near Shaan Palace, Ramban. During checking of the vehicles at the naka at about 6.40 pm, a santro car bearing registration No.DL4CND-7336, which was on its way from Srinagar towards Jammu was stopped. The car was being driven by co-accused Mohd. Qasim R/o Mumbai, Maharashtra. While checking the said vehicle, a plastic bag containing 101 balls of charas like substance weighing approximately 10-12 kilogram was recovered from the vehicle. The contraband was concealed under the front seat of the vehicle. The car was being driven by co-accused Mohd. Qasim R/o Mumbai, Maharashtra. While checking the said vehicle, a plastic bag containing 101 balls of charas like substance weighing approximately 10-12 kilogram was recovered from the vehicle. The contraband was concealed under the front seat of the vehicle. Accordingly, the police at the naka point swung into action and forwarded a docket to the police station and FIR No.90/2019 under Sections 8/20/29 NDPS Act was registered at Police Station, Ramban and the investigation taken up by Inspector Vijay Kotwal, the then SHO, Police Station, Ramban. 4. Accused-Mohd. Qasim was arrested, the requisite legal formalities were completed, the contraband was seized, statements under Section 161 Cr.P.C recorded and the sealed samples were prepared and sent for forensic/chemical analysis. The seized item was found to be charas. During further course of investigation, it came to light that co-accused- Mohd. Qasim resident of Mumbi (Maharasthra) had received one vehicle Santro car from an unknown friend of the petitioner-Abdul Majid R/o Aishmquam, Pahalgm District Anantnag on his recommendation. He brought it to Aishmquam to the residence of the petitioner-Abdul Majid to pick up 24 kg of charas, which was handed over to him by petitioner-Abdul Majid, packed in three bags. Co-accused- Mohd. Qasim concealed one bag under front seat of the car and remaining two bags in right and left boot of the car. It was further revealed that the contraband was being carried as per the instructions of the petitioner-Abdul Majid. He was transporting the aforesaid contraband to Delhi to deliver to one unknown customer, who was to make contact with the co-accused-Mohd. Qasim at Delhi and collect the contraband from him. From the investigation, it was found that the petitioner-Abdul Majid was the kingpin and was indulging in sale of charas in the area to unknown truck drivers and youths and other smugglers throughout India. On the basis of this material, offence under Sections 8/20/29 NDPS Act was established against co-accused- Mohd. Qasim and involvement of the petitioner in the case as conspirator was also established. It is the further case of the prosecution that the petitioner-Abdul Majid remained untraced and could not be arrested immediately. He succeeded in avoiding his arrest taking benefit of the security scenario in Kashmir valley. Investigation of the case was completed and challan presented before the Trial Court on 26.11.2019, pending search/arrest of the petitioner-Abdul Majid. It is the further case of the prosecution that the petitioner-Abdul Majid remained untraced and could not be arrested immediately. He succeeded in avoiding his arrest taking benefit of the security scenario in Kashmir valley. Investigation of the case was completed and challan presented before the Trial Court on 26.11.2019, pending search/arrest of the petitioner-Abdul Majid. On 11.12.2019, the petitioner was also arrested in the case and was put to interrogation. During questioning, the petitioner confessed his involvement in the commission of offence and accordingly, case under Section 8/20/29 NDPS Act was also established against the petitioner and he was also produced before the Trial Court by way of supplementary challan before the Trial Court on 06.06.2020. It is claimed by the prosecution that the case is proved by the statements of witnesses including FSL expert and the Investigating Officer, who, too are cited as prosecution witnesses. Statements of two of the witnesses have been recorded by the Court. This, in a nutshell, is the prosecution case against the petitioner. 5. On presentation of the supplementary challan against the petitioner, as it transpires, the petitioner filed a bail application before the Trial Court seeking his release. As noted above, the Trial Court did not agree with the petitioner and dismissed his application for bail. This is how the petitioner is before this Court by way of instant bail application. 6. Learned counsel for the petitioner has reiterated the submissions, which he made in support of his bail application before the Trial Court. He contends that given the fact that petitioner was not named in the FIR nor was he arraigned as accused in the challan, which was initially presented before the Trial Court, there is virtually no evidence against the petitioner to attract the rigors of Section 37 of the NDPS Act. He further claims that in the absence of any recovery of contraband made from the possession of the petitioner, he cannot be accused of committing offence under Sections 8/20/29 NDPS Act. He further claims that in the absence of any recovery of contraband made from the possession of the petitioner, he cannot be accused of committing offence under Sections 8/20/29 NDPS Act. He has cited a judgment of Delhi High Court passed in Bail Appl No.1312/2018 titled Dalip Singh @ Langda v. The State (NCT of Delhi) dated 14.01.2019 and a judgment of Chattisgarh High Court dated 03.10.2018 passed in MCRC No.6299/2018 titled Ravi Nadar v. State of Chattisgarh and judgment of Delhi High Court dated 19.03.2019 passed in Bail App No.1652/2018 dated Ramesh Kumar v. Narcotic Control Bureau in support of his plea for bail. 7. Learned counsel for the respondent has contested the bail application on the ground that offence for which the petitioner has been charged is very heinous and the trial is only at its infancy and, therefore, enlarging the petitioner on bail at this stage would have adverse affect on the fair trial in the case. It is submitted that apart from the confessional statement of the co-accused Mohd. Qasim, there is other material available on record, which clearly connects the petitioner with the commission of offence for which charge-sheet against the petitioner has been presented in the Trial Court. Learned counsel further argues that having regard to the fact that the seized contraband is of commercial quantity, rigors of Section 37 of the Act would come into play and unless the Court is satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offence and that he is not likely to commit any offence while on bail, the bail to the petitioner cannot be granted. 8. Having heard learned counsel for the parties and perused the record, I am of the view that the petitioner has not been able to make out a case for grant of bail at this stage. 9. It is true that when the FIR was registered the petitioner was not named and this was for obvious reasons. The co-accused-Mohd. Qasim was caught by the police at nakka checking and a huge quantity of contraband (charas) was recovered from him. It is on the basis of recovery of the contraband from the possession of the co-accused-Mohd. Qasim, FIR came to be registered in the Police Station, Ramban and the investigation set into motion. The co-accused-Mohd. Qasim was caught by the police at nakka checking and a huge quantity of contraband (charas) was recovered from him. It is on the basis of recovery of the contraband from the possession of the co-accused-Mohd. Qasim, FIR came to be registered in the Police Station, Ramban and the investigation set into motion. However, during the course of investigation and in its quest to find out source from where the contraband item had been transported, the police made further investigation in the matter. It was during this investigation, which included the statement of co-accused-Mohd. Qasim, it came to fore that co-accused Mohd. Qasim was transporting the contraband item on behalf of the petitioner. It is the petitioner, who had arranged a car in Delhi, to be taken to his residence at Aishmquam. It also came to light that the whole contraband item was entrusted to co-accused-Mohd. Qasim, driver of the car, at Aishmquam by the petitioner. In this way the police found involvement of the petitioner in the whole episode, but could not lay hands on him. The petitioner has avoided his arrest for some time taking the benefit of security scenario in the Kashmir valley. It is because of this reason, challan against Mohd. Qasim was presented awaiting arrest of the petitioner. It is only after the petitioner was formally arrested and interrogated, supplementary challan was presented before the Trial Court. 10. The Trial Court has taken note of all these aspects and has rightly come to the conclusion that the petitioner had not been able to make out a case where the Court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail. I fully concur with the view taken by the Trial Court. 11. There is no denying the fact that the contraband item recovered represents commercial quantity, therefore, while considering the bail application, the Court has to keep in mind the rigors engrafted in Section 37 of the NDPS Act. 12. I am not in agreement with the learned counsel for the petitioner that only evidence against the petitioner is confessional statement of the co-accused on the basis of which, no conviction can be made. 12. I am not in agreement with the learned counsel for the petitioner that only evidence against the petitioner is confessional statement of the co-accused on the basis of which, no conviction can be made. It is true that confessional statement of co-accused is not admissible in law and, therefore, the conviction cannot be based on mere statement of co-accused. However, in the instant case there is not only a confessional statement of the co-accused-Mohd. Qasim but there is enough of circumstantial evidence, which connects the petitioner with the commission of offence alleged against him. 13. This perhaps is the rare case where the police has made an effort to trace the source from where the seized contraband has emanated. Ordinarily, the police feel satisfied by arresting the person from whose possession the recovery is effected. Invariably, accused persons, from whose possession the recovery of contraband is made, are drivers and conductors of the vehicle(s) used for transporting the contraband item. No effort is made by the police to find out the person for and on whose behalf the contraband item is being transported. Neither the person, who entrusted the contraband item to the driver or the conductor of a vehicle nor the person whom it is meant for is traced out by the police. The challan is presented against the carrier of the contraband item, who may have indulged in the crime for making some quick money. 14. In the instant case, the police has made an effort and traced out the source from where the contraband has emanated, though it has not been able to trace out the person whom the seized contraband item was meant for. 15. Aside from that, looking to the background of the petitioner, who is claimed to be a kingpin indulging in selling the narcotic drugs to drivers, conductors and youth in the area, there is every likelihood that petitioner, if released on bail, may commit the same offence yet again. 16. 15. Aside from that, looking to the background of the petitioner, who is claimed to be a kingpin indulging in selling the narcotic drugs to drivers, conductors and youth in the area, there is every likelihood that petitioner, if released on bail, may commit the same offence yet again. 16. The judgments relied upon by the petitioner have been rendered in their peculiar facts and circumstances and mostly deal with the cases where only evidence against the accused applying for bail was a confessional statement of co-accused but the facts in the instant case are entirely different and at this stage, this Court cannot say with certainty that on the basis of evidence put up by the prosecution against the petitioner, there is any likelihood for believing that the petitioner is not guilty of the charged offence and that he would not commit any offence while on bail. 17. That apart, the trial is still at its infancy, only two out of 19 cited witnesses have been examined and, therefore, this is not a stage where indulgence of this Court is called for. 18. This application is, therefore, found to be devoid of any merit and the same is, accordingly, dismissed.