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JAMMU AND KASHMIR HIGH COURT
Sanjay Kumar Gupta, J.
Ghulam Hassan —Petitioner
versus
State of J&K —Respondent
B.A. No.148 of 2018
Decided on 3.11.2018

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. M.A. Goni, Sr. Advocate with Ms. Mehak Fatima Malik, Advocate
For the Respondent: Mr. Ajaz Lone, GA

IMPORTANT POINT
Section 37 of NDPS Act is applicable for offences under section 19 or section 24 or section 27A only when commercial quantity of Narcotics Drug or Psychotropic Substance is found from the possession of accused.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 37 r/w Section 498 Cr.P.C.—Bail—Recovery of 700 grams of charas from possession of Petitioner and FIR u/s 8/20 NDPS Act was registered—Rigors of Section 37 of NDPS Act would apply for offences u/s 19, 24 or 27-A only when commercial quantity of Narcotic Drugs or Psychotropic Substances was found—Petitioner accused was found in possession of quantity which was between commercial and small quantity and Section 37 did not apply—General law of bail applied in the case and every person was presumed to be innocent unless his guilt was proved—Applicant held entitled to bail. (Paras 8, 10 and 11)
Result: Application allowed.

JUDGMENT

Sanjay Kumar Gupta, J.—This is an application filed under Section 498 Cr.P.C. read with section 37 of NDPS Act for grant of bail.

2. The facts giving rise to the filing of instant application, briefly stated, are that the applicant is a senior citizen, aged about 72 years, and has established his own business in the form of a shop at Prem Nagar, Doda and earns his livelihood by selling lamb mutton. It is contended that he has been falsely implicated in a case FIR No.19/2018 of Police Station Chanderkote for offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and was accordingly, arrested. It is further contended that as per the charge sheet, the allegations contained in the docket purported to have been sent by ASI Harnam Singh to Chanderkote Police Station for registration of case, alleges recovery of 700 gms. of charas on personal search of the applicant; and that the contraband alleged to have been seized though is more than small quantity but is admittedly less than commercial quantity.

Thereafter, the applicant filed bail application before the trial Court on 30.07.2018 and the Principal Sessions Judge (Special Judge) Ramban rejected the same vide order dated 20.08.2018.

3. The respondent-State has filed its objections, wherein it has been stated that on 22.04.2017 while on naka duty during checking of passengers travelling in one Matador bearing No.JK06-0383, 19 Chillan of charas were recovered from the possession of one passenger, namely, Ghulam Hassan and on this a docket was written by ASI Harnam Singh and sent to the Police Station Chanderkote for registration of FIR and accordingly, FIR No.19/2018 under section 8/20 of NDPS Act was registered. During the course of investigation, the place of occurrence was visited by SHO concerned along with SPO Kulbir Singh 760/SPO at Naka Point and prepared the site plan. It is further stated that as per the evidence and FSL report, and statement of witness, offence under section 8/20 of NDPS Act was proved against the accused, namely, Ghulam Hassan and challan was produced before the Sessions Court, Ramban on 29.06.2018. It is further submitted that the accused is still lodged in District Jail Udhampur. It is further stated that the applicant is involved in a heinous crime, which carries a severe punishment and there is apprehension that the applicant may influence the prosecution witnesses and investigation of the case at its threshold. Lastly, it is prayed that the bail application be dismissed.

4. Learned senior counsel for the applicant submitted that the applicant has been falsely implicated in FIR No.19/2018 of Police Station Chanderkote under Section 8/20 NDPS Act. It is submitted that as per the prosecution story the applicant was found in possession of psychotropic substances and was booked under Sections 08/20 of NDPS Act. The applicant is in judicial custody after his arrest. It is also submitted that the bail application moved by the applicant before the trial court came to be dismissed on 20.08.2018 and that the trial court has not appreciated the evidence in its correct perspective.

5. On the other hand, learned counsel for the respondent-State has supported the order passed by the trial court and opposed the prayer for grant of bail.

6. I have considered the submissions of learned counsel for the parties and perused the record.

7. Section 37 of the NDPS Act, reads as under:—

“[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 [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 re

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JAMMU AND KASHMIR HIGH COURT Sanjay Kumar Gupta, J.Ghulam Hassan —Petitionerversus State of J&K —RespondentB.A. No.148 of 2018 Decided on 3.11.2018

IMPORTANT POINTSection 37 of NDPS Act is applicable for offences under section 19 or section 24 or section 27A only when commercial quantity of Narcotics Drug or Psychotropic Substance is found from the possession of accused.

Cases Referred (1)

JAMMU AND KASHMIR HIGH COURT
Sanjay Kumar Gupta, J.
Ghulam Hassan —Petitioner
versus
State of J&K —Respondent
B.A. No.148 of 2018
Decided on 3.11.2018

IMPORTANT POINT
Section 37 of NDPS Act is applicable for offences under section 19 or section 24 or section 27A only when commercial quantity of Narcotics Drug or Psychotropic Substance is found from the possession of accused.