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2023 DIGILAW 677 (JK)

Nazir Ahmad Dar v. UT of J&K

2023-11-02

JAVED IQBAL WANI

body2023
JUDGMENT : Javed Iqbal Wani, J 1. The instant bail application has been preferred by the accused petitioner for grant of bail in case arising out of FIR No. 85/2018 registered with Police Station Kathua for commission of offences punishable under section 8/21/22 of NDPS Act, 1985. 2. The facts emerging from the application would reveal that on 22.08.2018 a complaint came to be filed by one Sanjeev Singh Sen Inspector Task Force, Toll Post Udhampur with Sh. Kanwaljeet Shan, Sub-Inspector, Excise Department before Police Station Lakhanpur stating therein that on 21.08.2018 a vehicle bearing registration No. JK05E-3149 loaded with “Cinnamon” as declared goods of M/s J. Bhatt Enterprises Srinagar reported for assessment at Toll Post and during routine physical check by the Excise Team uptil 22.08.2018 the aforesaid vehicle came to be found carrying 4560 bottles of Chlorpheniramine Maleate and Codeine Phosphate Syrup drugs and approximately 2300 Kgs of banned polythene which came to be seized and consequently an FIR bearing Registration No. 85/2018 for commission of offences under section 8/21/22 NDPS Act, 1985, and Section 188 RPC came to be registered with Police Station Kathua without implicating the accused petitioner herein at that time as an accused and that during the course of investigation the accused petitioner was found involved in the case and came to be arrested on 05.02.2020 and that upon completion of the investigation, the charge sheet came to be laid before the Court of Sessions Judge Kathua on 02.05.2020. 3. It is being also stated in the application that the accused petitioner is an innocent person and is not involved in the commission of any offence covered in the charge sheet, but came to be implicated in the case falsely and that out of listed witnesses in the charge sheet only 2 witnesses have been examined by the trial Court without conducting the trial of the case speedily thus, violating the fundamental rights of the accused petitioner. 4. It is being further stated in the application that prior to the filing of the instant application, the accused petitioner had filed a bail application before the trial Court on 02.11.2022 which, however, came to be dismissed on 02.11.2022 itself on the premise of Sections 35 and 54 of the NDPS Act, 1985. 5. 4. It is being further stated in the application that prior to the filing of the instant application, the accused petitioner had filed a bail application before the trial Court on 02.11.2022 which, however, came to be dismissed on 02.11.2022 itself on the premise of Sections 35 and 54 of the NDPS Act, 1985. 5. It is being next stated in the application by the accused petitioner that no recoveries alleged drugs were made from the accused petitioner and that accused petitioner has been connected with the commission of offences falsely, alleging to be the driver of the vehicle in question wherein the alleged recovery of the drugs were made, overlooking the fact that the accused petitioner does not possess the driving license and was not, as such, driver of the vehicle in question on the date of occurrence. 6. Objections to the application have not been filed by the non-applicants/respondents despite availing opportunities granted by this Court. Heard counsel for the parties and perused the record. 7. Counsel for the accused petitioner while making his submissions in line with the contentions raised in the application would contend that the accused petitioner is an innocent and has been under incarceration for last more than three years in the case without there being any evidence or material connecting the accused petitioner with the commission of offences in question and would insist that the accused petitioner be granted bail, in view of the fact that ever since from the date of presentation of charge sheet on 02.05.2020 no substantial progress in the trial of the case has been made by the trial Court and as such, the delayed trial of the accused not attributable to the accused petitioner as well entitles the accused petitioner to concession of bail. 8. On the contrary, counsel for the non-applicant/respondent while controverting and resisting the submissions made by counsel for the accused petitioner would contend that the accused petitioner is involved in a heinous offences and as such, is not entitled to the concession of bail. Counsel for the non-applicant/respondent would further contend that in the event of release of accused petitioner on bail, there is every likelihood that the accused petitioner would tamper with the evidence and intimidate the witnesses and will use his liberty to subvert justice as also repeat the commission of similar offences. 9. Counsel for the non-applicant/respondent would further contend that in the event of release of accused petitioner on bail, there is every likelihood that the accused petitioner would tamper with the evidence and intimidate the witnesses and will use his liberty to subvert justice as also repeat the commission of similar offences. 9. Law is no more res-integra that while considering the question of grant of bail, as has been laid down by the Apex Court in case titled as Puran v. Rambilas, (2001) 6 SCC 338 is the Court should avoid consideration of details of the evidence as it is not a relevant consideration and while it is necessary to consider the prima-facie case, an exhaustive exploration of the merits of the case have to be avoided. It is also settled position of law as evolved in long line of decision by the Apex Court on the subject relating to the bail that there is no straight jacket formula for the use of discretion, yet at the time of deciding the question of “bail or jail” in non-bailable offences, the Court has to utilize its judicial discretion not only as per settled law but also according to the principles laid down by the Criminal Procedure Code and judicial precedents. It would be appropriate to refer to the judgment of the Apex Court passed in Dataram Singh v. State of Uttar Pradesh and Ors. 2018 (2) SCC 22 being relevant and germane herein wherein at Paras 1, 2, 4 and 5 following has been noticed: “1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accuse person to police custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons. 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age- old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.” 10. Keeping in mind the aforesaid position and principles of law and reverting back to the case in hand it is not in dispute that the accused petitioner has been under incarceration since 05.05.2020. Keeping in mind the aforesaid position and principles of law and reverting back to the case in hand it is not in dispute that the accused petitioner has been under incarceration since 05.05.2020. It is also an admitted fact that the charge sheet came to be presented before the trial Court on 02.03.2020 and ever since the said date, out of 21 listed witnesses therein only 2 witnesses have been examined so far by the trial Court. It is also significant to note here that object of bail is to seek attendance and appearance of the accused at the time by reasonable amount of bail as otherwise prolonged incarceration of the accused in the case would certainly amount to pre-conviction/detention. 11. The contention of counsel for the non-applicant/respondent that accused petitioner may tamper with the prosecution evidence and as such, would subvert justice or would repeat the commission of similar offences after release on bail, are allegations vague in nature without there being any credible, cogent and substantial material on record thereof corroborating the said contentions and same, as such, cannot be accepted. As a sequel to above discussions, the application in hand deserves to be allowed and accused petitioner is admitted to bail. Accordingly, the application is allowed and applicant is admitted to bail subject to the following conditions: (I) Furnishing of personal bond to the tune of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the trial court. (II) The applicant shall appear before the trial Court on every date of hearing unless exempted by the trial Court. (III) The accused/applicant shall not leave the territorial jurisdiction of the High court of UT of J&K and Ladakh till the conclusion of the trial unless permitted by this Court. (IV) The applicant/accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (V) That in the event, the prosecution collects any material during the period the applicant/accused is on bail that he has influenced the witnesses or tried to intimidate them, the prosecution would be well within its right to move an application before this Court for cancellation of his bail. 12. Disposed of.