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2021 DIGILAW 363 (JK)

Harvinder Singh v. Union Territory of J&K

2021-07-28

RAJNESH OSWAL

body2021
ORDER : 1. The instant bail application has been filed by the petitioner, who is facing trial in challan, titled, Union Territory of J&K vs. Harvinder Singh arising out of FIR bearing No. 58/2017 registered with Police Station, Chenani for commission of offences under Sections 8, 21 and 15 of the NDPS Act (for short the Act) for grant of bail. Earlier he had filed the bail application before the court of Principal Sessions Judge, Udhampur (hereinafter to be referred as the trial court) and the same was rejected by the learned trial court vide order dated 08.09.2020. The petitioner has filed the instant bail application on the ground that the police has allegedly recovered the Heroin weighing 3 Kg 905 grams and Poppy Straw weighing 2 Kg from the applicant/petitioner and after completion of the investigation, the challan was filed before the trial court and the learned trial court vide order dated 21.07.2017 has framed the charges. The prosecution has led evidence and has examined Sub Inspector Balbir Chand who had allegedly made the chance recovery and on whose docket, FIR (supra) was registered and also the two witnesses of the seizure memo of the alleged recovery of the contraband have been examined. 2. The petitioner has filed the bail application primarily on the ground that the Investigating Officer has not complied with the mandatory provisions of sections 42, 43 and 50 of the Act, the evidence led by the prosecution is contradictory and though the prosecution case is that the recovery of the alleged contraband was chance recovery but the prosecution witnesses have stated that they had prior information about the vehicle having the contraband. 3. Response stands filed by the respondent in which it is stated that the offence is very heinous and is against the society at large and the petitioner has committed a heinous crime and does not deserve any grant of bail. It is further submitted that the Sub Inspector, Balbir Chand along with Sgct Mohd Yaqoob, Hukam Chand and SPO Subash Chander were performing duty at Naka Point. During checking one vehicle bearing No. JK-02AU-3131 on the way from Tunnel side to Udhampur was signaled for checking but the driver of the vehicle did not stop at the naka point and tried to fled away from the spot. During checking one vehicle bearing No. JK-02AU-3131 on the way from Tunnel side to Udhampur was signaled for checking but the driver of the vehicle did not stop at the naka point and tried to fled away from the spot. The vehicle was intercepted and during the course of enquiry, the driver of the vehicle disclosed his name as Harvinder Singh, petitioner herein and during search of the vehicle, 3 Kg 915 grams of Heroin and Poppy Straw were recovered from the dickey, during checking of the vehicle and on enquiry the petitioner could not get any satisfactory reply. SHO Police Station, Chenani visited the site and prepared the site plan and conducted photography. On search, contraband Heroin weighing 3 Kg 915 grams and Poppy Straw weighing 2 Kg were found hidden in a Box made therein in the dickey of the said vehicle. Pursuant to the docket, FIR bearing No. 58/2017 under sections 8, 15 and 21 of the Act was registered and after the completion of the investigation, challan was filed in the trial court and as per the report, the prosecution is leading its evidence in the challan. 4. Mr. Rakesh Chargotra, learned counsel for the petitioner has vehemently argued that the witnesses have made contradictory statements which demonstrate that the prosecution story is concocted. He further lay stress that the prosecution case is based upon the factum of chance recovery whereas couple of prosecution witnesses have deposed that they have prior information of the contraband being transported in a vehicle and further that the mandatory provision under sections 42, 43 and 50 of the Act have not been complied with by the Investigating Officer so the petitioner is entitled to bail. At the same time, Mr. Chargotra very candidly admitted that section 50 of the Act has no applicability in the present case. Learned counsel for the petitioner has placed reliance a catena of judgments in State of Punjab vs. Balbir Singh, P. Simanchal Patra vs. State, 1996 (2) Crimes 27 , Kannoth Ahdul Rahiman vs. The Sub Inspector of Police, Malappuram and Others, 2020 (5) KLT 10, Surendranath Mohanty and Another vs. State of Orissa, 1996 (3) Crimes 208, Zakari Mustapha vs. S.R. Dutta, Assistant Collector (Preventive), Bombay and Another, 2000 (2) CCR 537, Nasir vs. State of Uttarakhand, 2013 (2) U.D. 111, Abdul Rashid Dar vs. State, 1998 Cri. L.J. 409, A.V. Dharmasingh and Others vs. State of Karnataka, 1993 Cri. L.J. 94, Zakir Hussain vs. State of U.P. 1997 Cri. L.J. 4102 and Olavana Post, Kozhikode vs. State of Kerala, 2018 (3) KLT 363 . 5. Mr. Vishal Bharti, learned Dy. AG has vehemently submitted that the petitioner has committed an offence which is against the society and the contraband allegedly recovered from the petitioner falls within the category of commercial quantity so the petitioner is not entitled to any bail. 6. Heard and perused the record. 7. From the perusal of the record, it is evident that the quantity of contraband allegedly recovered from the petitioner falls within the category of commercial quantity and as such rigors of section 37 of the Act are applicable in the instant case. The Apex Court in State of Kerala vs. Rajesh, (2020) 12 SCC 122 has held as under: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India vs. Ram Samujh, (1999) 9 SCC 429 : 1999 SCC (Cri) 1522, it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65 as under: (SCC p. 104, Para 24) “24. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. State (UT of Goa), (1990) 1 SCC 95 : 1990 SCC (Cri) 65 as under: (SCC p. 104, Para 24) “24. With deep concern, we may point out that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.” 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely: (i) there are reasonable grounds for believing that the accused is not guilty of such offence. (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 Cr.P.C. but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the 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 the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. 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. 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 High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.P.C. 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. Thus the offences under NDPS Act as contemplated by sec 37 NDPS Act stand on different pedestal so far as other non-bailable offences are concerned. There must be substantial probable causes for believing that the accused is not guilty and the probable causes must be apparent on the face of record and should not be of such nature as are deductible by critical appreciation of offences.” 8. The contention raised by the learned counsel for the petitioner is that the prosecution has led contradictory evidence and from the statement of couple of witnesses, it is evident that they had prior information of the vehicle having the contraband pertain to the merits of the case cannot be appreciated by the Court while considering the bail application. The law is well settled that the court should refrain from appreciating the evidence, while considering the bail application. Further the Apex Court in Satish Jaggi vs. State of Chhattisgarh, (2007) 11 SCC 195 has held as under: “12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. The law is well settled that the court should refrain from appreciating the evidence, while considering the bail application. Further the Apex Court in Satish Jaggi vs. State of Chhattisgarh, (2007) 11 SCC 195 has held as under: “12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial. 13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amount to the regular trial pointing out the deficiency and reliability/credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.” 9. The second contention raised by the learned counsel for the petitioner that the mandatory provisions of sections 42 and 43 of the Act have not been complied with by the prosecution, can also not been considered at this stage as it pertains to the merits of the case that can be looked into by the trial court while deciding the challan. So this contention too deserves to be rejected. So this contention too deserves to be rejected. Reliance is placed upon the decision of Apex Court in case titled Superintendent, Narcotics Control Bureau vs. R. Paulsamy, AIR 2000 SC 3661 , the relevant paragraph 6 is reproduced as under: “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. 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 with the formalities mentioned in those two sections.” 10. In order to get the bail in commission of offence involving commercial quantity of contraband, the petitioner has to demonstrate that there are certain factors those clearly point out that the petitioner is not at all guilty of offence and further there is no likelihood of the petitioner for committing the similar offence while released on bail. So far as in the instant case, the prosecution is still leading evidence and has not concluded the evidence, so this Court at this stage is unable to form an opinion that the petitioner is not guilty of offence for which he has been charged. This Court has deliberately not appreciated the evidence lest it shall cause prejudice to the either of the parties during trial. 11. The petitioner is facing trial for commission of heinous offence and the menace of the drug is not only destroying the social fabric of the society but also has been causing severe damage to the economy of the country, so this is not the case where the petitioner deserves to be enlarged on bail. Judgments relied upon by the learned counsel for the petitioner are not applicable at this stage in the present facts and circumstances of the case. 12. Judgments relied upon by the learned counsel for the petitioner are not applicable at this stage in the present facts and circumstances of the case. 12. In view of all what has been discussed above, this bail application is found to be devoid of any merit, as such, the same is dismissed.