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2021 DIGILAW 638 (JK)

Mohd. Ashraf Sheikh v. Union Territory of J&K

2021-12-03

RAJNESH OSWAL

body2021
JUDGMENT : Rajnesh Oswal, J. 1. The petitioner has filed the present application for grant of bail in a charge sheet arising out of FIR bearing No. 114/2020 for offences under Sections 8/21/22/29 NDPS Act on the ground that the petitioner has been in custody with effect from 27.11.2020 in FIR mentioned above and that the petitioner is innocent and has not committed any offence. 2. It is stated that petitioner had filed an application for grant of bail before the Court of Additional Sessions Judge, Kathua (hereinafter to be referred as the trial Court) where the challan was pending but the learned trial Court vide order dated 29.05.2021 dismissed the said bail application. It is further stated that the petitioner has been arrayed as an accused in the challan, without there being any recovery from him and has not played any role in the illegal act but the learned trial Court rejected the said bail application on the ground that the petitioner may tamper with the evidence and repeat the offence. 3. Response stands filed by the respondents in which it is stated that the offence committed by the petitioner is heinous is nature and as such, he is not entitled to bail. Besides, factual aspects of the case have been narrated. 4. Mr. M.A. Goni, learned Sr. counsel appearing on behalf of petitioner vehemently argued that the petitioner was arrested pursuant to the interrogation of the accused, Dilbagh Singh and no contraband has been recovered from the petitioner. He further submitted that there is no evidence on record to connect the petitioner with the alleged commission of offence. 5. Mr. Aseem Sawhney, learned counsel appearing on behalf of respondent vehemently argued that the provisions of Section 37 of the NDPS Act are applicable in the present case and as such, the petitioner cannot been larged on bail. 6. Heard and perused the scanned record of the trial Court. 7. From the record, it is evident that on 17.11.2020, Head Constable Lekh Raj produced a docket written in Urdu by Sub-Inspector Arun Salathia for registration of the case, in which it was stated that he along with Head Constable Lekh Raj, Selection Grade Constable Yash Paul and Constable Maggar Singh in departmental vehicle driven by driver Selection Grade Ct. 7. From the record, it is evident that on 17.11.2020, Head Constable Lekh Raj produced a docket written in Urdu by Sub-Inspector Arun Salathia for registration of the case, in which it was stated that he along with Head Constable Lekh Raj, Selection Grade Constable Yash Paul and Constable Maggar Singh in departmental vehicle driven by driver Selection Grade Ct. Ganesh Dass, was on patrolling duty within the jurisdiction of Police Station, Hiranagar and when they reached near Railway bridge at Dyala Chak at about 18:15 hours, one person was going towards Dinga Amb from Dyala Chak carrying one bag on his shoulder. On seeing Police party, he tried to hide himself. However, he was caught and on enquiry he disclosed his name as Dilbagh Singh S/o Baldev Singh R/o Katli, Tehsil Dinga Amb and during the search of his bag, 500 grams of Heroin (Chitta) like substance was recovered from him. Pursuant to this docket, FIR bearing No. 114/2020 under Section 8/21/22NDPS Act was registered in the Police Station and during the course of investigation, the Investigating Officer prepared a site plan of place of occurrence, got the photography conducted of the spot, seized heroin like substance from the possession of accused Dilbagh Singh and weighed the same with the help of an electronic weighing machine and out of the 500 grams of heroin like substance, 5 grams of substance was extracted and marked as “A” for chemical analysis and remaining contraband was marked as “B” . Thereafter, the sample “A” was resealed from EMIC Hiranagar and was sent to the FSL, Jammu for chemical analysis. 8. Investigating Officer also obtained the call detail report and recorded the statements of witnesses under Section 161 Cr.P.C. As during the investigation, the accused Dilbagh Singh did not cooperate so he was sent to Joint Interrogation Centre, Jammu for sustained questioning. During interrogation by the team of JIC, he disclosed the names of two suspects namely, Ashraf Hussain S/o Abdul Gani R/o Chaka Bhaderwah, District Doda and other Wazir Chand S/o Nand Lal R/o Sankhja, Tehsil Bhaderwah District Doda. During the investigation, the CDR of accused Dilbagh Singh was obtained from DPO Kathua and on scrutiny of the same it was found that the accused person was continuously in touch with both the accused persons namely, Ashraf Hussain and Wazir Chand. 9. During the investigation, the CDR of accused Dilbagh Singh was obtained from DPO Kathua and on scrutiny of the same it was found that the accused person was continuously in touch with both the accused persons namely, Ashraf Hussain and Wazir Chand. 9. On the basis of the interrogation of the accused Dilbagh Singh as well as CDR details, Investigating Officer added offence under Section 29 of NDPS Act. After the conclusion of the investigation, Investigating Officer produced the challan against Dilbagh Singh and the petitioner herein for commission of offences under Sections 8/21/22/29 NDPS Act. 10. A perusal of the challan reveals that the recovery was effected from the accused Dilbagh Singh and it has been further stated that during the interrogation of the accused Dilbagh Singh, he disclosed that Wazir Chand sent the contraband through the petitioner. 11. Most of the prosecution witnesses those have been examined by the Investigating Officer pertain to the recovery of the contraband from the accused Dilbagh Singh and nothing has been recovered from the petitioner. Petitioner has been roped-in with the aid of Section 29 of the NDPS Act and prima facie there is nothing on record to demonstrate involvement of the petitioner in the commission of offence, except with regard to the averment made in the challan that during the interrogation of the accused Dilbagh Singh, the name of the petitioner was surfaced. There is no statement of accused Dilbagh Singh to substantiate this allegation, that otherwise too would have been in admissible in view of judgment of Apex Court in Tofan Singh versus State of Tamil Nadu reported in 2021(4) SCC 1 . 12. Section 37 of the NDPS Act is applicable in the instant case and reads as follows:- “37. There is no statement of accused Dilbagh Singh to substantiate this allegation, that otherwise too would have been in admissible in view of judgment of Apex Court in Tofan Singh versus State of Tamil Nadu reported in 2021(4) SCC 1 . 12. Section 37 of the NDPS Act is applicable in the instant case and reads as follows:- “37. Offences to be cognizable and non-bailable.– (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),– (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years ormore under this Act shall be released on bail or on his own bond unless– (i) the Public Prosecutor has been given an opportunity to oppose the application forsuch release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied thatthere are reasonable grounds for believing that he is not guilty of such offenceand that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in Clause (b) of sub- section (1) are in addition tothe limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law forthe time being in force on granting of bail.” 13. In Union of India v. Shiv Shanker Kesari, reported in (2007) 7 SCC 798 , Apex Court has held asunder:- 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.” 14. Thus, the Court while considering bail application in matters, where section 37 NDPS has its application, can simply look in to the material on record but cannot critically evaluate the same so as to find out the sufficiency of the material to detain the accused. Thus, the Court while considering bail application in matters, where section 37 NDPS has its application, can simply look in to the material on record but cannot critically evaluate the same so as to find out the sufficiency of the material to detain the accused. Examining the case of the petitioner on touch stone of law laid down by Apex Court, this Court finds absence of any material evidence against the petitioner connecting the petitioner with the commission of offence for which he has been arrested as it is not forthcoming from the record or from the statement of any witness that petitioner has abetted the commission of offence or has been part of conspiracy to commit any offence under the Act. More so, the prosecution has not placed on record anything to demonstrate that the petitioner herein is earlier involved in similar type of offences as such this court is of opinion that the petitioner that the petitioner is not likely to commit such offence in future. 15. The petitioner has been in custody since 27.11.2021 i.e. for a period of more than one year and as such this is a fit case in which petitioner deserves to be enlarged on bail as the petitioner has qualified all the tests prescribed by section 37 NDPS Act. 16. As such, it is directed that the petitioner be released on bail, subject to the following conditions:- (i) subject to furnishing of two solvent sureties to the tune of Rs. 50,000/- to the satisfaction of trial court and personal bond of the like amount. (ii) he shall not make any attempt to contact with any of the prosecution witnesses during bail either physically or through any other mode. (iii) he shall appear before the learned trial Court as on all dates of hearings. (iv) he shall not leave the territorial jurisdiction of State/UT of Jammu and Kashmir without prior permission of this Court. 17. Any observation made in this order is solely for the purpose of deciding the bail application and shall have no bearing upon the merits of the case.