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2023 DIGILAW 633 (JK)

Sajad Ahmad Bhat, Haroon Rashid Bhat v. UT of J&K

2023-10-13

RAJNESH OSWAL

body2023
JUDGMENT : 1) “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 death-blow 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.” (Hon’ble Supreme Court in Union of India v. Ram Samujh, (1999) 9 SCC 429 ) 2) In NDPS cases, where there are allegations in respect of recovery of commercial quantity of contraband from the accused, refusal of bail is a rule and grant an exception subject to satisfaction of the conditions as prescribed under Section 37 of the NDPS Act. In order to prevent the turning of “Crown of India and heaven on earth” to a “drug haven”, strict adherence to the provisions contained in section 37 N.D.P.S Act, is a need of hour, when the number of NDPS cases are increasing day by day. 3) Both these bail applications arise out of FIR bearing No.283/2022 under Sections 8/21/29 of NDPS Act registered with Police Station, Kupwara, as such, they were heard together and by this common order both these applications are proposed to be decided. 4) Bail App No.58/2023 was initially filed by Sajad Ahmad Bhat and Ishfaq Habib Khan, however, subsequently, the application on behalf of Ishfaq Ahmad Khan was withdrawn vide order dated 12.07.2023. 5) All the petitioners in both the applications had been working as Special Police Officers in the Police Department. It is stated that the petitioners have been falsely implicated in the commission of above mentioned offences despite the fact that no recovery of any contraband has been effected from them and the petitioners have been arrayed as accused solely on the basis of disclosure statement made by the co-accused. The petitioners had earlier filed bail applications, however, the same were dismissed by the Court of learned Additional Sessions Judge (PO FTC), Kupwara, by virtue of common order dated 18.03.2023. After the dismissal of aforesaid bail applications, the petitioners have approached this Court for grant of bail on identical grounds. The petitioners had earlier filed bail applications, however, the same were dismissed by the Court of learned Additional Sessions Judge (PO FTC), Kupwara, by virtue of common order dated 18.03.2023. After the dismissal of aforesaid bail applications, the petitioners have approached this Court for grant of bail on identical grounds. It is stated by the petitioners that the alleged contraband recovered from the possession of the co-accused is otherwise not of commercial quantity, as such, rigours of Section 37 of the NDPS Act are not applicable in the case of petitioners. 6) The respondents have filed the response and besides narrating the factual aspects of the case, it has been stated that the petitioners are not entitled to the concession of bail, as the rigors of section 37 NDPS are applicable in the present case. 7) Mr. Altaf Haqani, learned senior counsel appearing for the petitioners, submitted that after the dismissal of bail applications, the charge-sheet has been filed and even in the charge sheet, there is no allegation in respect of recovery of any contraband from any of the petitioners and the petitioners have been arrayed as accused in the charge-sheet only on the basis of statement of PW-18, which otherwise do not link the petitioners with the commission of alleged offences. He further submitted that the petitioners have been in custody for the last nearly ten months and, as such, the continuous incarceration of the petitioners will amount to punishment without trial. It was also urged by Mr. Haqani that the petitioners have been arrayed as accused on the basis of confessional statement of the co-accused and there is no concrete evidence against them which can be finally made a basis to convict the petitioners. He placed reliance upon the following judgments: a. State v. Pallulabid Ahmad Arimutta & ors. (2022) 12 SCC 633 . b. Amit Ranjan v. Narcotics Control Bureau.2022 SCC OnLine 1532 c. Deepak Nagiya v. State (NCT of Delhi). 2023 SCC OnLine 5641 8) Per contra, Mr. Sajad Ashraf, learned GA, argued that the petitioners, despite being responsible for the enforcement of law, have indulged in drug trafficking, as such, they do not deserve to be enlarged on bail. b. Amit Ranjan v. Narcotics Control Bureau.2022 SCC OnLine 1532 c. Deepak Nagiya v. State (NCT of Delhi). 2023 SCC OnLine 5641 8) Per contra, Mr. Sajad Ashraf, learned GA, argued that the petitioners, despite being responsible for the enforcement of law, have indulged in drug trafficking, as such, they do not deserve to be enlarged on bail. He further submitted that merely non-recovery of contraband would not exonerate the petitioners, particularly when they have been arrayed as accused in terms of Section 29 of the NDPS Act, on the basis of statement of PW-18 namely Mudasir Ahmed Lone, Bank transaction and call data records. He relied upon the following judgments: A. State of Kerala v. Rajesh, (2020) 12 SCC 122 B. Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 9) On a specific query by this Court, learned senior counsel for the petitioners submitted that all the petitioners have been charged for commission of offences under Section 8/21 and 29 of NDPS Act by virtue of order dated 26.09.2023. It needs to be noted that the bail applications were rejected by the Court of Additional Sessions Judge, Kupwara, during the investigation stage and the charge sheet also stands transferred to the Court of Additional Sessions Judge (PO FTC), Kupwara. 10) Heard and perused the record. 11) The facts as emanating from the charge sheet are that Police Station, Kupwara, received an information at 1010 hours from reliable sources that a person named Muhammad Waseem Najar S/o Ghulam Muhammad Najar R/o Darzipura, Kupwara, along with unknown persons, is in possession of brown sugar and pursuant to a criminal conspiracy, they are selling narcotics to the young generation of Kupwara area. On receipt of this information, FIR No.283/2022 under Section 8/21, 29 of NDPS Act was registered against Muhammad Waseem Najar and other unknown persons on 09.12.2022. During the course of investigation, a communication was sent to the Executive Magistrate, 1st Class, Kupwara, with the request to make himself available during the search of the house of the accused. The Investigating Officer along with Executive Magistrate, 1st Class, Kupwara, SHO, P/S, Kupwara, Duty Officer Bazar Chowki and others proceeded towards the residential house of the accused Muhammad Waseem Najar. Upon reaching there, the police searched for the accused and the accused was found near hospital next to his house along with his brother Bilal Ahmad Najar. The Investigating Officer along with Executive Magistrate, 1st Class, Kupwara, SHO, P/S, Kupwara, Duty Officer Bazar Chowki and others proceeded towards the residential house of the accused Muhammad Waseem Najar. Upon reaching there, the police searched for the accused and the accused was found near hospital next to his house along with his brother Bilal Ahmad Najar. The accused was apprehended and the memo of arrest was prepared on spot. During questioning, the accused disclosed that he had kept some narcotic drug inside a wooden box in the attic of his residential house which he could get recovered. He also stated that the same was given to him by Irshad (petitioner No.2 in Bail App N.47/2023), who was working as SPO in the Police Department. Pursuant to the disclosure, search of the house of the accused in presence of Executive Magistrate, 1st Class, Kupwara, was conducted. The accused Waseem Najar led the police party to the attic of his house and opened a wooden box wherefrom he pulled out a bottle wherein some material was packed in a blue polythene with some knots. He unfastened the knots and there was a mixture of some brown and white powder. The said substance was weighed on spot by the IO using a digital scale and it was found to be approximately 18 grams. The recovery-cum-seizure memo was prepared on spot and FSL team DPL was intimated. Thereafter based on the disclosure memo and technical evidence, seven other accused persons were arrested followed by seven more, thus total 15 accused were arrested. Accused Irshad disclosed that he had sold 120 grams of brown sugar to Waseem Najar which was provided to him by SPO Haroon (petitioner No.1 in Bail App No.47/2023), to whom it was provided by Ishfaq Habeeb, who in turn had obtained the same from Imtiyaz S/o Khursheed Khan from Halmatpora. Further from Waseem Najar, he received Rs.50,000/, Rs.1.16 lacs (Rs.1.00 lac in cash and Rs.16,000/ through bank transfer into his wife’s bank account). All the above mentioned accused persons, as disclosed by accused Irshad, were summoned in the police station and they were arrested. Imtiyaz disclosed that he had sold approximately 900 grams of brown sugar to Ishfaq Habib Khan and the same was provided to him by his father Khurshid, to whom it was provided by Asif and Tamheed from Keran. All the above mentioned accused persons, as disclosed by accused Irshad, were summoned in the police station and they were arrested. Imtiyaz disclosed that he had sold approximately 900 grams of brown sugar to Ishfaq Habib Khan and the same was provided to him by his father Khurshid, to whom it was provided by Asif and Tamheed from Keran. Tamheed’s father, Shakir Khan, who is based in Pakistan, supplied drugs from Pakistan to the former and the same was sold by Tamheed to his father Khurshid through Asif for Rs.5.00 lacs which was paid in cash by his father, out of which Rs.50,000/ was paid through cheque. Thereafter two persons, namely, Tamheed Ahmad Malik S/o Shakir Ali Khan R/o Keran and Khursheed Ahmad Khan S/o Faujdar Khan R/o Halmatpora were arrested. During questioning, Tamheed disclosed that his father Shakir Ali Khan had given him two packets of brown sugar through border, out of which he brought one packet to Halmatpora and sold the same to Khursheed. The narcotic substance was taken to Khurshid’s shop and Khurshid agreed to pay only Rs.9.00 lacs whereas the price quoted was Rs.15.00 lacs but eventually Khurshid betrayed them and paid only Rs.5.00 lacs, out of which Rs.50,000/ were paid through cheque. The accused further disclosed that after keeping Rs.50,000/ with himself, he handed over the rest of the amount to his father across the border. He further stated that one packet is still kept in the attic of his residential house at Keran and he can get the same recovered. However, when Tamheed was taken to Keran for recovery, he tried to escape from the custody by complaining of fake illness and didn’t make any recovery. Thereafter, a SIT was constituted to investigate the instant case and upon checking the mobile phone of the accused, namely, Roman Bhat, narcotic drug related chats were found in his phone with two persons, though all the previous chats had been erased. The accounts were 7889656911 (Nadeem) and 7889796310 (Rehan). Asif Hashim was also apprehended. During questioning, Abid Bhat, who was a drug addict as well as a peddler, disclosed that recently he along with one Majeed from Kunan Poshpora, Kupwara, had approached Waseem Najar to procure some drugs, however, Waseem Najar could not be contacted till the last moment. Thereafter both of them drove to SPO Zahid Maqbool Dar who promised to procure some drugs. Thereafter both of them drove to SPO Zahid Maqbool Dar who promised to procure some drugs. The accused persons, namely, SPO Zahid Majeed and Tanveer Ahmad Wani were also arrested. After analysing call data records, it was found that Waseem Najar had 676 calls with SPO Irshad, 53 calls with SPO Sajad, 90 calls with SPO Haroon, 1385 calls with Tahir and 81 calls with Roman Bhat. Accused Ishfaq Habib had 15 calls with SPO Sajad and 171 calls with SPO Haroon and accused Roman Bhat had 254 calls with Nadeem and 105 calls with Tahir Ahmad Khan @ Rehan. 12) The Investigating Officer again interrogated Tamheed Khan, who disclosed that his father Shakir Ali Khan had given him three packets of heroin through the border, out of which he brought one packet to Halmatpora and sold the same to Asif, Khursheed and his son Imtiyaz Khan. He further stated that two packets were hidden in the attic of his residential house at Keran which could be recovered pursuant to his identification. Two search parties were constituted, one headed by I/C and another headed by PSI Manjinder Singh. The second search party was tasked to carry out search at Hayeeen, Trehgam and the first party was tasked to recover the contraband from the residential house of the accused at Keran based on his disclosure. The Tehsildar concerned was also requested to make himself available on spot. The first party headed by SIT I/C left to Keran and in presence of three independent witnesses, two packets weighing 996 and 840 grams were recovered from the residential house of the accused at Keran. During investigation, the statement of one drug addict namely, Mudasir Ahmad Lone, who was undergoing treatment for the last one year, was recorded who deposed about the complicity of the petitioners in the commission of offence. 13) During the course of investigation, the bank statements have also been obtained and it was found that Waseem Najar paid Rs.16,000/ through bank into the account of wife of SPO Irshad. After the conclusion of investigation, the charge sheet was filed before the Court of Principal Sessions Judge, Kupwara, on 06.06.2023, which was later assigned to Additional Sessions Judge, Kupwara. 14) The perusal of the charge sheet placed on record by the respondents reveal that PW-18, namely, Mudasir Ahmad Lone, has been cited as the witness against all the three petitioners. After the conclusion of investigation, the charge sheet was filed before the Court of Principal Sessions Judge, Kupwara, on 06.06.2023, which was later assigned to Additional Sessions Judge, Kupwara. 14) The perusal of the charge sheet placed on record by the respondents reveal that PW-18, namely, Mudasir Ahmad Lone, has been cited as the witness against all the three petitioners. The prosecution has relied upon call details records in order to establish that the accused persons were in contact with each other and further has relied upon the bank statement of the wife of petitioner- Irshad Ahmad, so as to demonstrate that an amount of Rs.16000/ was transferred in her account by accused Waseem Najar. The petitioners have not been arrayed as accused in the charge sheet solely on the basis of statement of co-accused. The statement of PW-18 Mudasir Ahmed Lone was also got recorded under section 164 Cr.P.C before the JMIC Kupwara and in his statement he has stated that SPO Sajjad, SPO Irshad and SPO Haroon from PS Kupwara (the petitioners in these bail applications) came to Waseem Najjar and handed a packet to him, which had heroin like white powder in it and asked him to sell it for Rs, 2 lacs. 15) No doubt, no recovery has been effected from the petitioners but they have been arrayed as accused by the IO by having recourse to Section 29 of the NDPS Act which provides that whoever abets or is a party to a criminal conspiracy to commit an offence punishable under Chapter IV of the NDPS Act, whether such offence is committed or not committed in consequence of such abetment or in pursuance of such criminal conspiracy, shall be punishable with the punishment provided for the offence. In fact, the arrest and subsequent disclosure of Waseem Najar had domino effect resulting in to subsequent arrests and recovery of more contraband. The prosecution has mentioned about the supply chain of drugs from Pakistan and its subsequent distribution in Kupwara. 16) The learned Add. Sessions Judge, Kupwara dismissed the applications for grant of bail on the ground that rigors of section 37 N.D.P.S Act are applicable. This court is also of the same view that as the recovery of the contraband in the instant case i.e. heroin falls within the category of ‘commercial quantity’, as such, the rigours of Section 37 of the NDPS Act are applicable. This court is also of the same view that as the recovery of the contraband in the instant case i.e. heroin falls within the category of ‘commercial quantity’, as such, the rigours of Section 37 of the NDPS Act are applicable. More so, the fact cannot be lost sight of that the petitioners have been charged for the commission of offences under Section 8/21 and 29 of the NDPS Act by virtue of order dated 26.09.2023. 17) In “Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346’, while setting aside the order of grant of bail by the High Court, the Hon’ble Apex Court has held as under: 16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail. 17. The quantity of “ganja” recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail rather his antecedents are indicative that he is a regular offender. In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail. (emphasis added) 18) The Hon’ble Supreme Court in the case of ‘State of Kerala v. Rajesh, (2020) 12 SCC 122 ’, has held as under: 18. --------- 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. State (UT 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 socio-economic 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.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. 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. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. 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. 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. (emphasis added) 19) In Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 , the Hon’ble Apex Court while allowing the appeal and dismissing the application for grant of bail, has held as under: 29. In line with the decision of this Court in Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 ], we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. 30. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance on the inclusion of Mohd. Arif Khan's name in place of the respondent's name in the endorsement of translation on the statement of the respondent. In Tofan Singh [Tofan Singh v. State of T.N., (2021) 4 SCC 1 ], a three-Judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG submitted that independent of the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage. (emphasis added) 20) This Court while considering a bail application cannot critically examine the statement of a witness recorded during the course of investigation. It is not a case where the petitioners have been roped in as accused, only on the basis of statement of co-accused but there is direct involvement of the petitioners in the selling and distributing the drugs. It is not a case where the petitioners have been roped in as accused, only on the basis of statement of co-accused but there is direct involvement of the petitioners in the selling and distributing the drugs. The circumstantial evidence in the form of Call Details Reports and Bank Details, further corroborates the direct evidence against the petitioners in the form of the statement of PW-Mudasir Ahmed Lone. At this stage, when the petitioners have been charged for the commission of offence, it cannot be stated that there are reasonable grounds for believing that the petitioners are not guilty of such offence for which they have been charged. The judgments relied upon by Mr. Haqani are not applicable in the instant case, as the judgments pertain to the cases, where the accused were implicated only pursuant to the statement made by the co-accused but in the instant case, there is direct involvement of the petitioners. 21) In view of the above, this Court is of the considered view that the petitioners are not entitled to bail at this stage. Both the applications are accordingly dismissed.