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2023 DIGILAW 203 (JK)

Rakesh Singh v. Union Territory of J&K

2023-05-25

MOHD.AKRAM CHOWDHARY

body2023
JUDGMENT : Mohd. Akram Chowdhary, J. 1. The petitioner is accused in a case registered vide FIR No. 524/2022 at Police Station, Udhampur for commission of offence punishable under sections 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act (for short, "NDPS Act") which, after investigation, is pending trial before the court of learned Additional Sessions Judge, Udhampur ["the Trial Court"]. 2. Petitioner prior to it moved a bail application before the Trial Court seeking his release from the judicial custody pleading therein that the petitioner has been falsely implicated in the case, investigation is complete and final report presented and nothing is required to be recovered from him. The application for bail filed by the petitioner was contested by the prosecution and the same was dismissed by the Trial Court vide its order dated 02.01.2023. As is apparent from order dated 02.01.2023 passed by the Trial Court, the petitioner was held not entitled to release on bail in view of his involvement in two other cases registered under sections 8/21/22 of NDPS Act, in which investigation is still pending, therefore, repetition of offence by the petitioner cannot be ruled out. 3. Having been aggrieved, the petitioner has moved this Court for his release on bail in the aforesaid case on the ground that the contraband-Heroine (chitta) recovered from the petitioner was weighing 5.51 gms, which falls under intermediate quantity, as such, rigors of Section 37 NDPS Act are not applicable and that the petitioner has already been granted bail by the competent Court of law in other two cases, against him. 4. Before adverting to the grounds on which the petitioner seeks concession of bail, it would be appropriate to have the prosecution version, which states that on 05.12.2022, PSI Rahul Jamwal No. 196625/EXJ along with Sgct Manohar Lal and SPO Nishant Sharma were deputed at Circular Road, Omara Morh and Sallian Talab area for patrolling on foot. During patrolling at about 1710 hrs., when police party reached at Circular Road, Udhampur, PSI Rahul Jamwal noticed one person coming from DFO Office towards Matador stand, Udhampur; that on seeing the police party, he tried to hide himself, this created suspicion and with the help of other members of the police party, said person was apprehended after hectic efforts, who disclosed his identity as Rakesh Singh S/o Kartar Singh R/o Near CEO Office Dhandyal, Udhampur. During personal search, contraband (heroine) like substance wrapped in a transparent polypack was recovered from the left pocket of his trouser. On questioning, petitioner failed to give any satisfactory answer. On this docket was prepared and sent through SPO Nishant Sharma to Police Station, Udhampur for registration of FIR and with request to depute an I.O. on spot for further investigation. On this report, case vide FIR No. 524/ 2022 for commission of offence under sections 8/21/22 NDPS Act came to be registered and investigation was entrusted to PSI Raman Kumar No. EXJ-196681. 5. Petitioner was arrested, the requisite legal formalities were completed, the contraband was seized, statements under section 161 Cr.P.C. recorded and the sealed samples were prepared and sent for forensic/chemical analysis. The seized item was found to be "Diacetylmorphine (Heroine). Investigation of the case was completed and challan presented before the Trial Court. It is claimed by the prosecution that the case is proved by the statements of witnesses including FSL expert and the Investigating Officer, who, too are cited as prosecution witnesses. 6. Mr. Jagpaul Singh, learned counsel for the petitioner has reiterated the submissions, which he made in support of his bail application before the Trial Court. He submits that that given the fact that that the contraband allegedly recovered from the petitioner is 5.51 gms. in weight, as such, falls under intermediate quantity, therefore rigors of Section 37 of NDPS Act are not attracted in the present case. He further submits that the rejection of bail application of the petitioner by the Trial Curt on the ground that the applicant is involved in some other criminal cases is wrong and not valid because mere registration of a criminal case does not mean that the petitioner has committed the said alleged offences. In support of his submissions, learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court rendered in the case of Prabhakar Tewari v. State of Uttar Pradesh & Ors., (2020) 11 SCC 648 , a judgment of this Court rendered in the case of Kishore Sharma v. State, 2017 SCC OnLine J&K 516 and a judgment of High Court of Madhya Pradesh at Jabalpur in Miss. Criminal Case No. 15398 of 2022 decided on 22.04.2022 in support of this submission. 7. Mr. Criminal Case No. 15398 of 2022 decided on 22.04.2022 in support of this submission. 7. Mr. Bhatia, Learned GA for the respondent, on the other hand, has contested the bail application on the ground that offence for which the petitioner has been charged is very heinous and the trial is only at its infancy and, therefore, enlarging the petitioner on bail at this stage would have adverse affect on the fair trial in the case. It is submitted that apart from the petitioner's involvement in FIR No. 524/2022, he is also involved in two other cases registered under the provisions of NDPS Act, which shows that the petitioner is a drug peddler and habitual offender and does not deserve concession of bail. Learned counsel further argues that having regard to the fact that the petitioner is a habitual offender and two more FIRs stand registered against him, there is every likelihood of petitioner's indulging in the narcotic trade, if released on bail. 8. Having heard learned counsel for the parties and perused the record, I am of the view that the petitioner has not been able to make out a case for grant of bail at this stage. It is true that the contraband (Heroine) recovered from the petitioner-accused falls within intermediate quantity, as such, rigors of Section 37 of NDPS are not attracted in the present case. However, petitioner's consistent involvement in drugs is a cause of concern. Even in a case, involving intermediate quantity of narcotic/contraband and not attracting rigor of Section 37 of NDPS, the accused on conviction is liable to be sentenced to an imprisonment upto ten years, besides fine. As such the offence of which petitioner is accused/charged is a grave offence, given to severe punishment. The Trial Court has taken note of all these aspects and has rightly come to the conclusion that the petitioner had not been able to make out a case where the Court is satisfied that there are reasonable grounds, that he may repeat commission of such offence, in case enlarged on bail. 9. There is no denying the fact that the besides FIR No. 524/2022, petitioner is also involved in cases registered at Police Station, Udhampur for commission of offences punishable under sections 8/21/22 NDPS vide FIR No. 461/2018 and at Police Station, Rehmbal for commission of offences under sections 8/21/222 NDPS Act., vide FIR No. 56/2022. 10. 9. There is no denying the fact that the besides FIR No. 524/2022, petitioner is also involved in cases registered at Police Station, Udhampur for commission of offences punishable under sections 8/21/22 NDPS vide FIR No. 461/2018 and at Police Station, Rehmbal for commission of offences under sections 8/21/222 NDPS Act., vide FIR No. 56/2022. 10. Looking to the background of the petitioner, who is claimed to be indulging in supplying/selling narcotics drugs to youth in the area, there is every likelihood that petitioner, if released on bail, may commit the same offence yet again. 11. The judgments relied upon by the petitioner have been rendered in their peculiar facts and circumstances but the facts in the instant case are entirely different and at this stage, this Court cannot say with certainty that on the basis of evidence put up by the prosecution against the petitioner, there is any likelihood for believing that the petitioner may not tamper with the prosecution evidence and that he would not commit any offence while on bail. 12. While deciding the question of bail, it is the duty of the Court to maintain a delicate balance between individual liberty and larger interest of the society. Releasing a person involved in such a crime, will give wrong signal to the society if such a person is permitted to roam freely, after having been arrested on three occasions and even after grant of bail, he recycled him, in the offences of same nature. That apart, the trial is still at its infancy, therefore, this is not a stage where indulgence of this Court is called for. 13. This application is, therefore, at this stage found to be devoid of any merit and the same is, accordingly, dismissed.