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2022 DIGILAW 12 (JK)

Abdul Majeed Lone v. Union Territory of J&K

2022-01-31

SANJEEV KUMAR

body2022
JUDGMENT : Sanjeev Kumar, J.-This is an application by the petitioner under Section 439 of the Code of Criminal Procedure, 1973 seeking his enlargement on bail in case FIR No.10/2020 under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“the Act”] registered with Police Station, Karalgund district Kupwara. Prior to approaching this Court, the petitioner had moved a similar application before the Additional Sessions Judge, Handwara [“the Trial Court”] where the trial against the petitioner is pending adjudication. The Trial Court after appreciating the rival contentions did not find it a fit case to enlarge the petitioner on bail pending trial and as a result, rejected the application for bail filed by the petitioner vide its order dated 26th June, 2021. 2. Being dissatisfied and aggrieved by the order dated 26th June, 2021 passed by the Trial Court the petitioner has filed the instant petition seeking indulgence of this Court to grant him bail in the aforementioned case. 3. The petitioner seeks his enlargement on bail, inter alia, on the following grounds:- i) The petitioner is innocent and has been falsely implicated in the FIR registered for commission of offence under Section 8/20 NDPS Act. ii) That while making search and recovery the Investigating Officer has not followed the mandatory procedure laid down under Section 50 of the Act. Reliance is placed on the Constitution Bench judgment of the Supreme Court in the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172 . iii) That there has been violation of Section 42 of the Act while effecting seizure of the alleged contraband item. iv) That the FSL report in original was not a part of the Final Police Report submitted by the Investigating Officer under Section 173 Cr.P.C. and the Photostat copy of the FSL report was of no evidentiary value. The case of the prosecution is, therefore, bound to fail. In these circumstances, the Trial Court should have enlarged the petitioner on bail. v) That the procedure adopted by the Investigating Officer while collecting the sample and sending it to FSL for chemical examination was not proper. The case of the prosecution is, therefore, bound to fail. In these circumstances, the Trial Court should have enlarged the petitioner on bail. v) That the procedure adopted by the Investigating Officer while collecting the sample and sending it to FSL for chemical examination was not proper. The prosecution case is that a charas like substance wrapped in maize leaves was recovered from the possession of the petitioner without indicating as to how many maize leaves in all were recovered from the possession of the petitioner and as to whether the sample of the alleged contraband item wrapped in each maize leaf was picked up. It is submitted that in the absence of proper procedure having been followed the case of the prosecution is bound to fail and in these circumstances the petitioner cannot be kept in jail pending trial. vi) That the petitioner is suffering from many life threatening ailments and in case he is kept in incarceration for long he may lose his life without proper treatment. 4. On being put on notice, the respondents have caused appearance through Mr. Sajjd Ashraf, learned Government Advocate and have opposed the bail application vehemently. In the objections filed for and on behalf of the respondents it is submitted that on 01.03.2020, the police party headed by ASI Abdul Rashid laid a nakka at Humpora Crossing for frisking of the travelers and others. While frisking the vehicle and the people at the said crossing a suspicious movement was noticed. The person tried to escape from the post. He was given a chase and was apprehended. During preliminary questioning, apprehended person disclosed his identity as Abdul Majeed Lone, the petitioner herein and from his personal search, charas like substance weighing approximately 1100 gms wrapped in maize leaves was recovered from his possession. FIR No.10/2020 was registered in the Police Station under Section 8/20 NDPS Act and the investigation taken up. During investigation, all legal formalities including recording of statements of the witnesses under Section 161 and 164 Cr.P.C. were completed. The contraband item seized from the petitioner was sealed/re-sealed before the Executive Magistrate 1st Class, Kralgund and the sealed exhibits were sent to FSL, Srinagar for chemical examination and obtaining expert opinion. On 11th May, 2020, expert opinion from FSL, Srinagar was received and as per the opinion, seized contraband was detected as charas. The petitioner was arrested on spot. The contraband item seized from the petitioner was sealed/re-sealed before the Executive Magistrate 1st Class, Kralgund and the sealed exhibits were sent to FSL, Srinagar for chemical examination and obtaining expert opinion. On 11th May, 2020, expert opinion from FSL, Srinagar was received and as per the opinion, seized contraband was detected as charas. The petitioner was arrested on spot. He was later placed in judicial custody and lodged in District Jail, Kupwara. Chargesheet against him was submitted to the Trial Court on 12th August, 2020. It is submitted that the trial has commenced and the proceedings are going before the Trial Court. It is submitted by the respondents that the petitioner had earlier moved a bail application before the Trial Court on the similar grounds but the same was rejected by the Trial Court. The petitioner has now filed a fresh application on identical grounds and in addition has prayed for his release on bail on health grounds. It is further submitted that the petitioner is involved in the commission of heinous offences under NDPS Act and the quantity of contraband recovered from his possession is a commercial quantity attracting the rigours of Section 37 of the NDPS Act. It is, thus, submitted that the Trial Court has considered all the arguments, which learned counsel for the petitioner has raised before this Court and has not found favour with any of them. 5. The respondents have, thus, prayed for dismissal of this bail application so that a right signal is sent to the society that perpetrator of heinous crime of dealing with narcotics and psychotropic substances cannot be tolerated at any cost. 6. Having heard learned counsel for the parties and perused the material on record, I am of the view that the petitioner has miserably failed to make out a case for grant of bail on either of the grounds urged by the learned counsel for the petitioner. 7. Regarding contention of learned counsel for the petitioner that the petitioner in view of serious ailments he is suffering from is entitled to be enlarged on bail, suffice it to say that the medical opinion does not support such contention. As per the report of the medical consultant/medical officer, District Jail, Kupwara, the petitioner is suffering from some ailments and on the advice of doctors of SDH, Kupwara, he has been put on conservative treatment. As per the report of the medical consultant/medical officer, District Jail, Kupwara, the petitioner is suffering from some ailments and on the advice of doctors of SDH, Kupwara, he has been put on conservative treatment. The petitioner has been advised by the doctors to follow a diet LBA exercise chart. It is the opinion of the doctors that the diseases, the petitioner is suffering from, are chronic and would take long time to go away with conservative treatment. The petitioner, it is submitted, is on follow up on monthly basis. In short, as per the opinion of the doctor, the petitioner does not suffer from such ailments as cannot be treated while he remains in jail. 8. Regarding other grounds urged by Mr. A.M. Dar, learned Senior Counsel to claim bail in favour of the petitioner, let it be reminded that the matters falling under NDPS Act do not have any space for compassion or sympathy or any kind of liberal approach while considering the plea of the accused for grant of bail. Jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of NDPS Act. The rigours provided under Section 37 of NDPS Act are in addition to the limitations engrafted under the Code of Criminal Procedure or any other law for the time being in force on granting bail. This is so clearly mentioned in Sub Section 2 of Section 37 of NDPS Act. For facility of reference, provisions of Section 37 of the NDPS Act are reproduced hereunder:- “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 3 [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.” 9. From a reading of Section 37, it is crystal clear that the bail with respect to commission of offences pertaining to commercial quantity of contraband can be granted only in cases where there are reasonable grounds for believing that accused is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. Observations of the Supreme Court made in paras 7 and 8 of the judgment titled Union of India v. Ram Samujh and others, (1999) 9 SCC 429 are apt and read thus:- “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 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. With deep concern, we may point out that the organised 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.” 10. It is, thus, trite that the expression “reasonable grounds” means something more than prima facie grounds. The term contemplates substantial probable cause for believing that the accused is not guilty of the alleged offence and such belief would require existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. This legal position enunciated in the case of Ram Samujh (supra) was reiterated by the Supreme Court in its recent judgment rendered in the case of State of Kerala etc v. Rajesh etc Criminal Appeal No.154-157 of 2020 decided on 24th January, 2020. It is in the light of legal position adumbrated in the aforesaid judgments of the Supreme Court and many other, claim of an accused for grant of bail in a case registered under Section 8/20 NDPS Act is required to be examined and considered. 11. Learned Senior Counsel appearing for the petitioner raised several grounds to urge that the evidence collected by the prosecution is so weak and shaky that no reasonable person would believe that the petitioner is guilty of commission of offence with which the petitioner has been charged. 11. Learned Senior Counsel appearing for the petitioner raised several grounds to urge that the evidence collected by the prosecution is so weak and shaky that no reasonable person would believe that the petitioner is guilty of commission of offence with which the petitioner has been charged. The argument of learned Senior Counsel that the search and seizure effected by the Investigating Officer without following the mandatory provisions of Section 50 and 42 of the NDPS Act vitiates the whole trial and, therefore, it would be a complete travesty of justice, if the petitioner remains in incarceration during the entire trial. The issue raised is no longer res integra. It is well settled that in case of a chance recovery, the conditions specified in Section 50 NDPS Act do not apply. Where in a particular case the recovery of contraband made by the Investigating Officer is a chance recovery or not and would attract the provision of Section 50 NDPS Act is a matter of fact to be determined during trial. 12. Having regard to the prosecution story as put up in this case, it prima facie appears that the Investigating Officer/Police did not have prior information and the petitioner was apprehended during search of vehicles that was undertaken by the police in a nakka laid down at Kralgund crossing. The petitioner was found in suspicious circumstances and, therefore, searched. From his personal search, charas like substance approximately weighing 1100 gms wrapped in maize leaves was recovered from his possession. 13. In view of the aforesaid evidence on record, it is difficult for this Court to believe the learned counsel appearing for the petitioner that the police had prior information and, therefore, should have followed the mandate of Section 50 NDPS Act before making personal search of the petitioner. The petitioner was found to carry contraband item only after he was searched. Be that as it may, I am of the firm view that whether in the given facts and circumstances, recovery of the contraband item made by the police is a chance recovery or is on the basis of prior information should be left to be determined by the Trial Court in light of the evidence that is led before it. Similar is the position with regard to the compliance of Section 42. Similar is the position with regard to the compliance of Section 42. Reference in his regard can be made to the judgment of Supreme Court in the case of Mohinder Kumar vs The State, Panaji (1998) 8 SCC 655 , Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 and State of Punjab v. Baljinder Singh (2019) 10 SCC 473 . 14. To put it short, the petitioner has not been able to make out a prima facie case with regard to admitted violation of Section 50 & 42 of NDPS Act in the given facts and circumstances of this case. This Court is of the prima facie view that in the given facts and circumstances of the case, the provisions of Section 42 or for that matter Section 50 of NDPS Act were not attracted. 15. This brings me to the last contention of the learned Senior Counsel appearing for the petitioner that in the absence of report of FSL in original appended with the challan, the case of the prosecution is bound to fail and if that be the position, the instant case would not attract the rigors of Section 37 NDPS Act. I have given my thoughtful consideration to this aspect of the matter vehemently highlighted by the petitioner. 16. At this stage, it may be noted that during the course of arguments learned counsel for the petitioner made a submission that final report presented before the Trial court was accompanied by a photocopy of the seizure memo prepared at the time of seizure of the contraband item. With a view to substantiate the aforesaid assertion, the petitioner also filed an affidavit. Response to the affidavit was submitted by the respondents. The allegation made by the petitioner that the final report was accompanied by a photocopy of the seizure memo was emphatically denied and it was submitted that the seizure memo in original is part of the challan presented before the Trial Court in terms of Section 173 Cr.P.C. The plea of the learned counsel for the petitioner that FSL report in original is not part of the challan and, therefore, all proceedings in the challan are vitiated also cannot be accepted at this stage. 17. 17. The prosecution has tendered explanation to the extent that the original FSL report sent by the FSL to the Investigating Officer was lost in the transit and, therefore, awaiting the FSL report in original, the challan was presented with the photocopy of the report obtained from the FSL. It is submitted by the S.H.O. concerned that the needful has now been done and the original FSL report has been placed on record before the Trial Court. 18. Learned counsel for the respondents submits that if for reasons beyond control of prosecution an original of the document is lost or destroyed, photocopy of such document can always be proved by leading secondary evidence. Be that as it may, the issue does not call for determination at this stage. The impact of such omission on part of the prosecution can only be seen by the Trial Court whether or not the original FSL report has been placed; Whether the prosecution would like to prove photocopy of the FSL report placed on record by leading secondary evidence, are all questions, which have no relevant at the time of considering bail application and are required to be best left to the Trial court for determination. 19. The petitioner is involved in the commission of offence punishable under NDPS Act with respect to commercial quantity and, therefore, rigors provided under Section 37 of NDPS Act are fully attracted. The petitioner has failed to make out a case for making this Court to believe that on the basis of the evidence on record, the petitioner is not guilty of the offence alleged or that he would not temper with the evidence while he is released on bail. Persons, who indulge in pernicious and illegal activities, have the propensity to repeat the same. 20. The trial is at its infancy and, therefore, it would not be just and proper to extend the concession of bail in favour of the petitioner. 21. For the foregoing reasons, as also adopting the reasoning given by the Trial court, I find no merit in this petition. The bail plea, thus, fails and is, accordingly, dismissed.