Judicial Analysis Court Copy Headnote Facts Arguments Court observation

JAMMU AND KASHMIR HIGH COURT
Sanjay Dhar, J.
Rayees Ahmad Dar – Petitioner
versus
Union Territory of J&K – Respondent
Bail App No.5 of 2022
Decided on 21.5.2022

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. Shuja-ul-Haq, Advocate
For the Respondent: Mr. Usman Gani, GA

IMPORTANT POINTS
(1) Bail – Section 37 of NDPS Act is not a complete bar to grant of bail in a case where recovery of contraband drug falls under parameters of commercial quantity.
(2) Expression “Magistrate” appearing in Section 26 of Evidence Act refers only and only to a Judicial Magistrate of first class or a Metropolitan Magistrate.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 439 – Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Indian Evidence Act, 1872 – Section 27 – Bail application – Prosecution for offences under Sections 8/21, 29 of NDPS Act – Statement of co-accused which is only link between petitioner and alleged crime has been recorded in presence of Executive Magistrate while co-accused was in police custody – Applicability of provisions contained in Section 27 of Evidence is ruled out in this case as nothing has been recovered from possession of petitioner pursuant to statement made either by petitioner or by co-accused – Section 37 of NDPS Act is not a complete bar to grant of bail in a case where recovery of contraband drug falls under parameters of commercial quantity – It only provides that bail in such cases cannot be granted unless Prosecutor has been given an opportunity to oppose application and Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail – Respondents have not placed on record anything to show that petitioner, if enlarged on bail, would commit similar offences – Bail granted. (Paras 8, 11, 25, 26 and 27)
(B) Criminal Procedure Code, 1973 – Sections 26 and 164 – Constitution of India – Articles 20(3) and 21 – Recording of confession – It is only a Judicial Magistrate of first class or a Metropolitan Magistrate who is empowered to record confessions – It takes into its embrace right of an accused flowing from Article 20(3) of Constitution of India as also Article 21 thereof – Expression “Magistrate” appearing in Section 26 of Evidence Act refers only and only to a Judicial Magistrate of first class or a Metropolitan Magistrate – Any other interpretation would defeat aim and object of recording confession of accused in an atmosphere free of coercion, pressure or undue influence of police/investigating agency. (Para 19)
Result: Application allowed. Bail granted.

JUDGMENT

The petitioner has invoked the jurisdiction of this Court under Section 439 of the Cr.P.C seeking bail in FIR No.50/2021 for offences under Section 8/21, 29 of NDPS Act registered with Police Station, Bijbehara.

2. As per the prosecution case, on 17.03.2021, Police Station, Bijbehara, received information that one person, namely, Sabzar Ahmad Dar has concealed some contraband substance in his residential house with a view to sell the same to the youth. On the basis of this information, FIR No.50 of 2021 was registered and investigation was set into motion. During investigation of the case, residential house of accused Sabzar Ahmad Dar was searched and from there 2600 bottles of Welcyrex containing Codeine Phosphate came to be recovered and seized. The samples of the recovered contraband were sealed and sent to FSL, Srinagar, for chemical examination. On 04.11.2021, accused Sabzar Ahmad Dar came to be arrested. During his custodial interrogation, he disclosed that the said contraband drug was kept in his house by accused Zahid Ahmad Dar and Mudasir Ahmad Dar. Accused Zahid Ahmad Dar came to be arrested on 19.11.2021 and during his custodial interrogation, he made a disclosure statement that he along with Mudasir Ahmad Dar had concealed the contraband drugs in the residence of co-accused Sabzar Ahmad Dar. Accused Zahid Ahmad Dar made a further statement that the said contraband drugs were actually purchased by him from accused Rayees Ahmad Dar, the petitioner herein. The petitioner/accused Rayees Ahmad Dar was arrested on 20.11.2021. It appears that the petitioner herein had approached the Court of learned Principal Sessions Judge, Anantnag, for grant of bail but the application came to be dismissed by the said Court in terms of its order dated 01.02.2022.

3. It has been contended by the petitioner that he has no knowledge about the recovery of 2600 bottles Welcyrex (Codeine Phosphate) and nothing has been recovered from his possession. It has been further contended that there is no link between the recovery of contraband from co-accused and the petitioner. It is also contended that confessional statement of the co-accused is not admissible in evidence and, as such, on the basis of a statement made by the co-accused, the petitioner cannot be implicated in the instant case. Finally, it has been submitted that the petitioner is ready to abide by any condition that may be imposed by this Court in case he is admitted to bail.

4. The bail application has been contested by the respondent by filing a reply thereto. In its reply, the respondent has contended that during investigation of the case, co-accused Sabzar Ahmad Dar was arrested and he disclosed that the seized contraband drugs were dumped in his house by other two accused, namely, Zahid Ahmad Dar and Mudasir Ahmad Dar. It has been further contended that accused Zahid Ahmad Dar disclosed that he along with petitioner are indulging in trade of illicit drugs and that they are selling the same to youth of the area at high rates. It is further averred that one of the accused, namely, Mudasir Ahmad Dar, is yet to be arrested.

5. I have heard learned counsel for the parties and perused the material on record including the Case Diary.

6. A perusal of the Case Diary reveals that 2600 bottles of Welcyrex (Codeine Phosphate) have been recovered by the Investigating Agency from the house of co-accused Sabzar Ahmad Dar. The quantity recovered is, admittedly, a commercial quantity. The Case Diary further reveals that role of the petitioner in the alleged crime has surfaced when statement of co-accused Zahid Ahmad Dar was recorded who has stated that in March, 2021, he, along with co-accused Mudasir Ahmad Dar, purchased 50 boxes of contraband drugs from petitioner Rayees Ahmad Dar. He has further stated that a total of 6000 bottles (100 ml each) of Welcyrex were purchased @ Rs.150/- per bottle, whereafter these 6000 bottles of contraband drugs were kept in the house of co-accu