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2021 DIGILAW 378 (JK)

Iqbal Qasim v. Union Territory of J&K

2021-07-28

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present application has been filed by the petitioner for grant of bail in challan titled 'Union Territory of J&K vs. Iqbal Qasim” arising out of FIR No. 108/2018 for commission of offences under sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) after the bail application filed by the petitioner was rejected by the court of learned Sessions Judge, Ramban (hereinafter to be referred as the trial court) vide order dated 28.06.2019. 2. It contended in the bail application that the petitioner has been in custody since 27.06.2018 and as per the allegations, during checking on 27.06.2018, two polythene packets containing charas were recovered from his bag weighing 500 gms each. It is further stated that the quantity of contraband allegedly recovered from the petitioner is intermediate quantity, so rigors of section 37 of the Act shall not apply. It is further submitted that all the material witnesses have been examined and none of the witness has corroborated the story as alleged by the Police in the FIR. It is stated that the petitioner is an innocent person having no criminal background and in the event the petitioner is not released on bail, his family will be spoiled. 3. Status report stands filed by the respondents, in which it is stated that on 27.06.2018, the Police party led by HC Raj Kumar, during checking at Railway crossing T-Chowk Banihal, found one person carrying a brown bag in his hand and was stopped. During checking, two polythene bags containing 500 grams of charas each was recovered from his possession. The said person disclosed his name as Iqbal Qasim S/o Qasim Bahi R/o Jonagarh. On receipt of said docket, FIR bearing No. 108/2018 under section 8/20 of the NDPS Act was registered against him and investigation was entrusted to Sub-Inspector, Sameer Ahmed. During investigation, the Investigating Officer visited the spot and seized both the polythene bags containing 500 gms. charas each from the possession of the accused and thereafter, the challan for commission of offence under section 8/20 of the Act was filed. 4. Learned counsel for the petitioner submits that the petitioner has been in custody for the last three years and the quantity of the contraband recovered from the petitioner is not commercial quantity, as such, rigors of section 37 of the Act are not applicable in the instant case. 4. Learned counsel for the petitioner submits that the petitioner has been in custody for the last three years and the quantity of the contraband recovered from the petitioner is not commercial quantity, as such, rigors of section 37 of the Act are not applicable in the instant case. It is further argued that a number of prosecution witnesses have been examined. 5. Per contra, Mr. Jamrodh Singh, learned GA has vehemently argued that the petitioner is involved in heinous offence, as such, he is not entitled to concession of bail by this Court. 6. Heard and perused the record. 7. From the perusal of the record, it is evident that one kg. of charas has been recovered from the possession of the petitioner and as per notification No. SO 1055(E) dated 19.10.2001, commercial quantity of charas has been referred to as one kg. The commercial quantity in relation to narcotic drugs and psychotropic substances means any quantity greater than the quantity specified by the Central Government by notification in the official gazette. Though the commercial quantity of charas has been referred to as one kg. in the notification, but section 2(vii)(a) clearly provides that the commercial quantity shall be quantity greater than the quantity specified by the Central Government by notification in the official gazette. Therefore, one kg of charas shall fall within the category of intermediate quantity. Reliance is also placed on the decision of the Supreme Court in the case of State of Kerala v. Rajesh, reported in (2020) 12 SCC 122 and the relevant para is reproduced as under:- “16. It may be noticed that hashish oil is shown at Sl. No. 13 in the Notification dated 19-10-2001 issued by the Central Government in exercise of power under Sections 2(vii-a) and (xxiii-a) of the NDPS Act. Hashish oil above 1 kg is commercial quantity.” 8. In view of this, rigors of section 37 of the Act are not applicable in the instant case. Since the prosecution has examined a number of witnesses in support the challan and only few witnesses are remaining and taking into consideration the fact that the petitioner has remained in custody for more than three years, the petitioner deserves to be enlarged on bail. 9. Since the prosecution has examined a number of witnesses in support the challan and only few witnesses are remaining and taking into consideration the fact that the petitioner has remained in custody for more than three years, the petitioner deserves to be enlarged on bail. 9. In view of the above, it is directed that the petitioner shall be released on bail subject to following conditions:- (i) subject to furnishing of two local solvent sureties to the tune of Rs.50,000/- each to the satisfaction of the trial court along with personal bond of the like amount. (ii) he shall furnish an undertaking that he shall intimate his whereabouts to the concerned SHO on the first day of every month. (iii) he shall not contact with any of the prosecution witnesses during the trial and shall appear before the trial court as and when required. 10. In the event of violation of any of the conditions mentioned above, the respondent can lay a motion for cancellation of bail of the applicant/petitioner before this Court. 11. Disposed of accordingly.