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2023 DIGILAW 80 (JK)

Mohd. Anayat v. Union Territory of J&K

2023-02-23

M.A.CHOWDHARY

body2023
JUDGEMENT 1. Petitioner through the medium of this bail application under section 439 of the Code of Criminal Procedure seeks grant of bail in his favour in a case titled "UT of J&K v. Sudesh Singh & Anr.", pending on the files of Sessions Court Reasi, arising out of FIR No. 55/2019 registered at Police Station Reasi for the commission of offences punishable under sections 8/20/29 NDPS Act and 50 Excise Act. 2. It has been pleaded that the petitioner has been falsely implicated by the respondent merely on the basis of an inadmissible confessional statement made by co-accused recorded under section 67 of NDPS Act and there being no other evidence, as such, he is entitled to be admitted to bail. It has been further asserted that petitioner had moved an application for grant of bail before the trial court, however, the same was rejected vide order dated 26.07.2022 passed in Bail App No. 435/2022. 3. Pursuant to notice, respondent filed objections to the application asserting therein that the bail application moved by the petitioner has already been rejected by the trial court and that he is not entitled to bail in view of the gravity of the accusation, nature of evidence available and severity of punishment provide for the offences under sections 8/20/29 of the NDPS Act of which he had been charge sheeted. It was prayed to reject his petition. 4. Heard and considered. 5. Learned counsel for the petitioner vehemently argued that since no contraband had been recovered from the petitioner, he has been implicated in the case only on the basis of confessional statement made by some person from whom the alleged contraband has been recovered and that in view of the only evidence in the form of confessional statement by the co-accused, the petitioner is entitled to be admitted to bail in view of the law laid down by the Supreme Court in "Tofan Singh v. State of Tamil Nadu", reported as (2021) 4 SCC 1 and " State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr.", reported as (2022) 2 SCALE 14 and prayed that the law laid down in both these cases by the Apex Court is squarely applicable to the facts of the petitioner's case and prayed that the petitioner be admitted to bail. 6. 6. Learned counsel for the respondent, ex adverso, vehemently opposed the grant of bail in favour of the petitioner arguing that petitioner is involved in the commission of serious offences punishable under the NDPS Act being a drug smuggler as he has been found during investigation that he had supplied contraband to the other accused for its sale to the young children to make them addicts. He has further argued that no evidence has been led in the case and the accused who had been absconding earlier, with great deal of difficulty has been arrested and vide order dated 28.05.2022 had been charge-sheeted for the commission of offences punishable under sections 8/20 NDPS Act by the trial Court. It was prayed that the application be rejected and plea of bail be turned down. 7. Factual matrix of the case is that police party from Police Station Reasi, while patrolling on 29.03.2019 at a place near Nau Devi Mandir, received an information from reliable sources that a shop keeper, namely, Balbir Chand of Karua Tehsil Katra was involved in illegal sale of charas which he had kept in his house and his shop. Police party raided his shop, found one Maruti Car bearing Registration No. JK02X-0696 parked inside the shop. During search, they found that the shop keeper along with another person namely, Sudesh Singh of Dharanteh Thakrakote, who worked with said shop keeper Balbir Chand, was present in the shop and during search, 07 bundles of polythene containing 48 pieces of charas, 05 bottles of whisky 750 ml each, 09 bottles of Eagles XXX Rum 750ml each, 07 bottles of ob whisky 375 ml each, 05 bottles of XXX Rum 375 ml each were recovered from there. Besides this, 07 bundles of polythene containing 49 pieces of charas and an amount of Rs. 43,2000/- were recovered from the vehicle in addition to 08 bottles of English liquor 375 ml each and 62 other alcohol bottles 250 ml each were also recovered from nearby his shop buried underneath the ground in his residential place. All these items had been kept in illegal way for selling illegally to the young people. A case was registered vide FIR No. 55/2019 under sections 8/20/29 of NDPS Act and Section 50 of Excise Act, at Police Station Reasi. 8. During the course of investigation, total charas recovered on being weighed, came out 1.81 kg. All these items had been kept in illegal way for selling illegally to the young people. A case was registered vide FIR No. 55/2019 under sections 8/20/29 of NDPS Act and Section 50 of Excise Act, at Police Station Reasi. 8. During the course of investigation, total charas recovered on being weighed, came out 1.81 kg. On the basis of the statements of eye witnesses, it was found that accused Balbir Chand was involved in illicit trafficking of drugs and the accused Sudesh Singh used to purchase charas from one Mohd. Anayat @ Kaka S/o Mir Hussain R/o Seela Tehsil and District Reasi. Both the accused were arrested. Accused Balbir Chand during investigation stated that for the last two years, he was involved in illicit trade of liquor and charas besides other business of selling vegetables, kulcha on Rehri etc.; that he had purchased land of two shops near his house at Karua and constructed three shops on that land out of the amount earned from this business. It also came in the investigation that the said Balbir Chand had involved his wife Anuradha also in this illegal business of narcotic drugs and liquor. The co-accused Sudesh Singh had stated that he used to purchase the contraband from one Anayat @ Kaka of Seela Reasi and used to give it to Balbir Chand for selling it to the people of his area. During enquiry conducted by the I.O., it was found that said Balbir Chand besides raising his house and shops, he had an amount of Rs. 14,22,080/- in his bank account in Branch Aghar Jitto and Rs. 19,846/- in Reasi Branch, of J&K Bank. 9. After investigation of the case, the charge-sheet was laid against Balbir Chand, Sudesh Singh and Mohd. Anayat @ Kaka for the commission of offences punishable under sections 8/20/29 NDPS Act. The petitioner vide order dated 28.05.2022 was charge-sheeted for the commission of offences punishable under sections 8/20 NDPS Act by the trial court with the accusation that co-accused Sudesh Singh used to purchase charas from him and transport in Vehicle No. JK02X-0696 to co-accused Balbir Chand and then he used to sale the same along with other co-accused to the local population as stated by accused Balbir Chand in his disclosure statement on 29.03.2019 to have purchased the charas from him through Sudesh Singh. 10. 10. On perusal of the order of charge framed against the petitioner, it is found that he has been charged on the basis of the statement of a co-accused only. Hon'ble the Apex Court in "Tofan Singh v. State of Tamil Nadu", (2021) 4 SCC 1 held that a confessional statement recorded under section 67 of the NDPS Act will remain inadmissible in the trial of offences under the NDPS Act. The Supreme Court again in a case of "State by (NCB) Bengaluru & Ors. v. Pallulabid Ahmad Arimutta & Anr.", reported as (2022) 2 SCALE 14 , held in the teeth of the aforesaid decision, the arrest made by the police on the basis of confessional/voluntarily statement of the accused or co-accused under section 67 of the NDPS Act, cannot form basis for overturning the impugned order releasing them on bail. 11. Having regard to the afore-stated observations made by the Hon'ble Apex Court that the confessional statement or voluntarily statement made by co-accused cannot form basis to deny bail to a person from whose conscious possession there was no recovery. Applying the aforesaid principles to the facts of the petitioner's case who has also been charge-sheeted only on the basis of the statement of co-accused, in the considered opinion of this court, he is entitled to be admitted to bail at this stage. 12. The application is, thus, allowed. The petitioner is admitted to bail, subject to following conditions that he shall: (i) furnish bail and personal bonds to the satisfaction of the Trial Court. (ii) not leave the territorial jurisdiction of this Court without prior permission of the Trial Court. (iii) not influence any of the prosecution witnesses to tamper the prosecution evidence. 13. Bail application along-with pending application(s), if any, is disposed of.