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2022 DIGILAW 686 (JK)

Zahoor Ahmad Bhat v. Union Territory of Jammu And Kashmir

2022-12-12

JAVED IQBAL WANI

body2022
JUDGMENT Javed Iqbal Wani, J. - This order shall dispose of three bail applications i.e. Bail App 43/2022, 76/2022 and 44/2022, having arisen out of one and the same FIR being FIR no. 93 of 2021 registered with Police Station Handwara under sections 8/21 read with sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) as also sections 466 and 34 IPC against the petitioners. 2. According to prosecution version, on 16.4.2021 the police station Handwara received a written docket on behalf of Incharge Police Post Langate, SI Shahid Nazir, No. 474/PAU to the effect that while conducting naka checking of vehicles and pedestrians at Dandkadal, Langate, one vehicle Santro bearing no. JK09/0504 on way from Batgund to Langate was stopped for checking, whereupon two persons boarding the said vehicle fled away before the naka leaving behind a mobile set 'Redmi Mi' with IMEI no. 860786044970872, 86076044970880, which was recovered by the police while apprehending at the naka the driver of the vehicle and another person boarding the said vehicle. 3. According to prosecution version, upon checking of the vehicle in question, one polythene bag came to be recovered containing Heroin like substance approximately 900 gram. During preliminary questioning of the apprehended driver and another person, the driver identified himself as Mohd. Yousuf Bhat son of Ab. Aziz resident of Pingroo, and the other person as Javid Ahmad Khan son of Dawlat Khan resident of Gund Chabootra. The said apprehended driver and Javid Ahmad Khan during questioning further revealed identity of two persons who fled away from the vehicle as Zahoor Ahmad Bhat resident of Syedpora Karnal, and Bashir Ahmad Dar resident of Adoora, Mawar. 4. According to prosecution version, during the course of investigation a site plan was prepared and statement witnesses was recorded, and the substance recovered was weighed and found 1 kg which was seized besides seizing the vehicle in question. During the course of investigation of the case, as per the prosecution version, the particulars of the owner of the vehicle came to be verified from the office of the Regional Transport Officer, Kashmir who reported that one Abdul Qayoom War son of Mohd Akbar resident of Shogpora, Magan, was the actual owner of the vehicle and he had sold the said vehicle to one Bilal Ahmad Mir son of Gh. Qadir resident of Dahama Vilgam. Qadir resident of Dahama Vilgam. During the investigation, it was also found that the said Bilal Ahmad Mir was running a workshop at Handwara wherein one Aqib Akber Khan resident of Langate (petitioner in bail application no. 76 of 2022) was stated to have been working and had taken the vehicle in question from the workshop to his home and changed the number plate of the vehicle by affixing a fake number plate. It is also pertinent to note that during the course of investigation the prosecution states to have obtained opinion of Forensic Laboratory qua the seized substance and in terms of the said opinion the recovered substance was found to be Heroin. It is also significant to note here that during the course of investigation, a certificate under section 65-B of the Evidence Act is stated to have been obtained from Airtel mobile company, Jammu, with CDR details of the mobile set seized with SIM card no. 8082878823 registered in the name of one Mohd. Azam Dayan son of Mohd. Touseen resident of Dani Tangdar, who is stated to be maternal uncle of the accused Zahoor Ahmad Bhat son of Noor Hussain Bhat resident of Syedpora, Karnah (petitioner in bail application 43 of 2022) who was found to be boarding the vehicle in question on the date of occurrence with the said mobile phone of his maternal uncle. 5. Upon conclusion of the investigation, offences under section 8/21, 22, 29 NDPS Act read with section 466 and 34 IPC, were found to have been committed by the accused persons and charge sheet is stated to have been laid before the court of Additional District Judge on 9.10.2021. Heard learned counsel for the parties. 6. Appearing counsel for the petitioners while making the submissions would reiterate that the petitioners have not committed any offence but have been implicated falsely in the case and that the petitioners have been connected with the commission of the alleged offences on the basis of confessional statement made by two accused persons namely Mohd. Yousuf Bhat and Javid Ahmad Khan and that the said confessional statements in law could not have been relied upon by the prosecution for connecting the accused with the commission of the alleged offences. Yousuf Bhat and Javid Ahmad Khan and that the said confessional statements in law could not have been relied upon by the prosecution for connecting the accused with the commission of the alleged offences. It is further contended by the counsel for the petitioners that the bail applications filed prior to the filing of the instant petitions before the trial court came to be dismissed without appreciating the facts and circumstances of the case in true and correct perspective and that since the investigation is complete and final report laid before the competent court, further detention of the accused persons/petitioners is not justifiable. 7. Objections to the bail applications have been filed by the respondents wherein the prosecution version is being reiterated. 8. According to counsel for the respondents, the petitioners accused persons have committed heinous and serious offences under NDPS Act and, therefore, the petitioners are not entitled to the concession of bail more so in view of section 37 of the Act. Learned counsel for the respondents thus would pray for dismissal of the applications. 9. Before proceeding to advert to the bail applications in hand, it would be appropriate and advantageous to refer to section 37 of the NDPS Act being relevant and germane, in that section 37 of the Act regulates the grant of bail in cases involving offences under NDPS Act. Section 37 is reproduced hereunder: Section 37 Narcotic Drugs and Psychotropic Substances Act, 1985 1[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 2[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.] 10. A bare perusal of the provision supra would reveal that the cases in which commercial quantity of contraband is alleged to have been recovered from the accused, bail can only be granted if there are reasonable grounds to believe that the accused are not guilty of such offences and that they are not likely to commit any offence while on bail. The said mandate of the provision has to be followed and adhered to at the time of consideration of the bail application of the accused. The rider of section 37 of the Act is to be applied on the bail application in addition to the relevant condition provided under Criminal Procedure Code. 11. Reverting back to the instant bail applications it is not in dispute that the quantity of contraband seized is commercial in nature warranting application of section 37 of the Act. The standard prescribed for grant of bail as provided under section 37 of the Act is reasonable ground to believe that the person is not guilty of offence. The said expression 'reasonable ground to believe' has been interpreted and considered by the Apex court in a long line of decisions including one passed in case titled as Union of India through Narcotics Control Bureau, Lucknow versus Md. Nawaz Khan, reported in 2021 SCC Online SC 782 wherein at para 22 following has been laid down. 22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal (2003) 7 SCC 465 Affairs, W.B. v. Anil Kumar Bhunja [ (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : AIR 1980 SC 52 ] to work out a completely logical and precise definition of 'possession' uniform[ly] applicable to all situations in the context of all statutes. 12. & Remembrancer of Legal (2003) 7 SCC 465 Affairs, W.B. v. Anil Kumar Bhunja [ (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : AIR 1980 SC 52 ] to work out a completely logical and precise definition of 'possession' uniform[ly] applicable to all situations in the context of all statutes. 12. The contention urged by the petitioners in the instant bail applications that the recovery of the contraband was not effected from them as also that they were implicated in the alleged offences on the basis of confessional statement made by the other two accused persons, would not be of any help to the petitioners at this stage, more so in view of admitted fact that the trial court has framed the charges against the petitioners for commission of offences supra. Therefore, having regard to the settled position of law on the subject of grant or refusal of bail, this court is not required while considering the bail applications to scrutinize and appreciate the evidence in detail and to have a meticulous and critical analysis of the matter as the same is forbidden while considering the bail application. Indisputably the trial court while framing charges against the petitioners herein has considered the material collected by the prosecution having found the petitioners connected with the commission of the alleged offence. The said confessional statement having been recorded before the Executive Magistrate/Tehsildar cannot either be commented upon or else overlooked by this court while considering the bail applications in hand at this stage, nor can it be held by this court that the petitioners are innocent and have not committed the alleged offence. 13. The judgments relied upon by the counsel for the petitioners in support of the contention do not lend support to the case of the petitioners. 14. Having regard to what has been observed, considered and analysed here-in-above, the instant bail applications entail dismissal and are accordingly dismissed.