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2021 DIGILAW 684 (JK)

Umar Gul Bhat v. UT Of J&K Through P/S Sadar

2021-12-28

SANJAY DHAR

body2021
JUDGMENT : 1) Petitioner has invoked the jurisdiction of this Court under Section 439 of J&K Cr. P. C seeking bail in his favour in a case arising out of FIR No.264/2020 for offences under Section 8/20 of the Narcotic Drugs and Psychotropic Substances, Act, (for short ‘the NDPS Act’) registered with Police Station, Saddar, Srinagar. After investigation of the FIR, charge sheet stands already laid before the Court of 2nd Additional Sessions Judge, Srinagar. Pursuant to framing of charges against the petitioner, trial of the case is in progress. 2) As pr the case of the prosecution, on 05.11.2020, while the officials of Police Station, Saddar, Srinagar, were on patrolling duty near Natipora Chowk, Srinagar, they spotted a person moving in suspicious circumstances. The said person tried to escape from the spot but he was nabbed by the police personnel. The person was identified as accused/petitioner herein and upon his search, one bag was seized from his possession which contained thirty strips (720 capsules) of Spasmoproximio Plus. Upon questioning, the accused/petitioner could not justify the possession of the aforesaid drug and, accordingly, the recovered capsules were seized and the FIR came to be registered against the accused/petitioner. 3) During investigation of the case the petitioner was taken into custody. The sample of the seized capsules was sent to FSL, Srinagar, for seeking expert opinion. After receipt of the opinion from the FSL, the capsules were found to contain Tramadol, which is a psychotropic substance notified in terms of Notification No.S.O.1761(E) dated 26.04.2018 issued by the Central Government. Thus, after investigation of the case, offences under Section 8/21 of NDPS Act were found established against the petitioner and the charge sheet was laid before the trial court. On 07.06.2021, the petitioner was charged for the offences under Section 8/21 of NDPS Act, whereafter trial of the case started. It appears that by now statements of as many as four prosecution witnesses have been recorded by the trial court. 4) It appears that during trial of the case, petitioner had approached the trial court seeking bail, but the application has been dismissed by the learned trial court vide its order dated 29.12.2020. It appears that by now statements of as many as four prosecution witnesses have been recorded by the trial court. 4) It appears that during trial of the case, petitioner had approached the trial court seeking bail, but the application has been dismissed by the learned trial court vide its order dated 29.12.2020. 5) The petitioner has sought bail on the grounds that the recovered contraband falls within intermediate category, as such, rigor of Section 37 of the NDPS Act does not apply to the instant case; that even on merits there are contradictions and inconsistencies in the statements of eye witnesses and, as such, petitioner deserves to be enlarged on bail and that on health grounds also, petitioner deserves to be admitted to bail. 6) Respondents have resisted the bail application on the grounds that petitioner is involved in an offence which is against society and if he is enlarged on bail, it will be prejudicial to the future of young generation which is already reeling under the menace of drug trafficking. It has been further contended that if petitioner is admitted to bail, there is every apprehension that he will indulge in similar activities. 7) I have heard learned counsel for the parties and perused the material on record including the trial court record. 8) The allegation against the accused/petitioner is that commercial quantity of contraband drugs was recovered from his possession. According to the petitioner, the quantity of contraband alleged to have been recovered from his possession falls in the category of intermediate quantity. The assertion of petitioner is factually incorrect, inasmuch as petitioner has been found in possession of 720 capsules, with each capsule containing at least 400 mg of mixture of different chemicals, in which one of the chemicals is Tramadol Hydrochloride, which is a substance falling under the category of psychotropic substances in terms of Notification No.S.O. 1761(E) dated 26.04.2018 issued by the Central Government. Even though the weight of Tramadol in 720 capsules recovered from the petitioner may come out less than 250 grams which is categorized as commercial quantity, yet it is the total weight of the capsules which is to be considered. In this regard, reference is made to the Notification No.S.O.2942(E) dated 18.11.2009 and Notification No.S.O.1055(E) dated 19.10.2021 issued by the Central Government 9) The Supreme Court in the case of Hira Singh and Ors. Vs. In this regard, reference is made to the Notification No.S.O.2942(E) dated 18.11.2009 and Notification No.S.O.1055(E) dated 19.10.2021 issued by the Central Government 9) The Supreme Court in the case of Hira Singh and Ors. Vs. Union of India and Ors., AIR 2020 SC 3255 , has, while upholding the validity of aforesaid notification, held that in the mixture of narcotic drugs or psychotropic substances with one or more neutral substances, the quantity of neutral substances is not to be excluded, rather it is to be taken into consideration along with actual content by weight of the offending drug, while determining the “small quantity” or “commercial quantity” of a narcotic drug or psychotropic substance. The relevant para of the judgment is reproduced as under: “10. In view of the above and for the reasons stated above, Reference is answered as under: (I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law; (II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances; (III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001; (IV). Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed. Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed. 10) Applying the ratio laid down in the afore-quoted judgment to the instant case, it can safely be stated that commercial quantity of psychotropic substance is alleged to have been recovered from the possession of the petitioner. The contention of the petitioner, therefore, is without any substance. Thus, rigor of Section 37 of the NDPS Act is attracted to the instant case with full force and unless the petitioner satisfied this Court about the existence of conditions laid down in the aforesaid provision, he cannot be enlarged on bail. 11) In order to test the merits of the contention of the petitioner that even if rigor of Section 37 of NDPS Act is attracted to his case, still then he deserves to be enlarged on bail on merits, the aforesaid provision is required to be noticed. It reads as under:- “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 offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and 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 to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.” 12) From a perusal of the aforesaid provision, it is clear that in the cases in which commercial quantity of contraband is alleged to have been recovered from the accused, bail can be granted only if there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The said mandate of the legislature is required to be followed at the time of consideration of the bail application of the accused. These limitations on grant of bail are in addition to the limitations under the Code of Criminal Procedure. 13) The Supreme Court in the case of Union of India vs. Ram Samujh and another, 1999 (9) SCC 429 , has laid down broad parameters to be followed while considering application for bail moved by the accused involved in the offences under NDPS Act. The relevant excerpts of the observations are reproduced as under:- “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 deathblow 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 v. Chief Secy., Union Territory of Goa [ (1990) 1 SCC 95 )] as under: 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 v. Chief Secy., Union Territory of Goa [ (1990) 1 SCC 95 )] as under: 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; and (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 socioeconomic 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.” 14) From the perusal of the aforesaid observations of the Supreme Court, it is clear that unless two conditions mandated under Section 37 of the NDPS Act are satisfied, an accused who is involved in offence relating to commercial quantity of contraband, cannot be enlarged on bail. 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. 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. 15) The Supreme Court in the case of State of Kerala Vs. Rajesh and others, 2020 (12) SCC 122 , while interpreting the expression reasonable grounds appearing in Section 37 of the NDPS Act, has observed as under:- “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 CrPC, 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.” 16) In the backdrop of the legal position, as enunciated by the Supreme Court, it is clear that unless it is shown from the material on record, which would include the statements of the witnesses recorded by the prosecution before the trial court in support of its case, that there are reasonable grounds to justify the satisfaction that the accused is not guilty of the alleged offences, the accused cannot be enlarged on bail. 17) It has been vehemently contended by learned counsel for the petitioner that most of the material witnesses to the seizure and recovery of contraband from the possession of the accused have given inconsistent and contradictory versions of the occurrence and that from analysis of their statements, it can safely be concluded that there are reasonable grounds for believing that the petitioner is not involved in the alleged offence. In this regard, learned counsel for the petitioners has particularly referred to the statements of PWs Sub Inspector Mohammad Yousuf, SGCt. Jarnail Singh, Constable Wasiq Mansoor and Head Constable Abdul Rashid. In this regard, learned counsel for the petitioners has particularly referred to the statements of PWs Sub Inspector Mohammad Yousuf, SGCt. Jarnail Singh, Constable Wasiq Mansoor and Head Constable Abdul Rashid. 18) Before embarking upon the analysis of the evidence lead by the prosecution in order to determine the merits of the submissions advanced by the learned counsel for the petitioner, it needs to be borne in mind that while deciding a bail application, this Court is not required to appreciate and scrutinize the evidence in detail at this stage. A meticulous and critical analysis of the evidence by the prosecution at this stage is not permissible. 19) Learned counsel for the petitioners has pointed out certain inconsistencies and contradictions that have appeared in the cross-examination of the aforesaid prosecution witnesses, three of whom are eye witnesses to the occurrence. However, it is to be noted that all these witnesses have, prima facie, supported the prosecution version in their examination-in-chief. A minute analysis of the statements of these witnesses may or may not bring to the fore inconsistencies and contradictions but then at the time of considering the bail application, it is not open to this Court to go into these minute details and to analyze the evidence on record meticulously and critically. Therefore, it can safely be stated that this Court, on the basis of material on record, cannot record a satisfaction that the accused is not guilty of the alleged offence. 20) Having held as above, the bar to grant of bail as contained under Section 37 of the NDPS Act gets attracted to the case of the petitioner with full force. The plea of the petitioner for grant of bail on merits is, therefore, without any force. 21) Lastly, it has been contended by petitioner that due to various ailments from which he is suffering, his long incarceration may have an adverse impact upon his health and, as such, he deserves to be enlarged on bail. Petitioner has placed on record copies of medical prescriptions and a communication of Senior Medical Officer, Central Jail, Srinagar, dated 17.05.2021. As per the said communication, petitioner is suffering from “right side flank pain Dysuria and low back ache”. The communication further indicates that presently petitioner is under proper medical supervision and management. It is also recorded that the petitioner needs surgical consultation. As per the said communication, petitioner is suffering from “right side flank pain Dysuria and low back ache”. The communication further indicates that presently petitioner is under proper medical supervision and management. It is also recorded that the petitioner needs surgical consultation. The communication, thus, indicates that petitioner does suffer from certain ailments which require surgical consultation but the report does not suggest that petitioner’s ailment cannot be managed while keeping him in custody. 22) In view of what has been discussed hereinbefore, the instant bail application is dismissed. However, respondents are directed to conduct thorough medical checkup of the petitioner and in case petitioner requires specialized treatment, he shall be provided the same. It shall be open to the petitioner to approach the trial court for grant of bail on medical grounds, if after his latest medical checkup, need for the same arises.