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2018 Supreme(J&K) 647
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Ajaz Ahmed and anr. – Petitioner
Vs.
State of J&K – Respondent
B.A. No. 105 of 2018 & IA No. 01 of 2018
Decided On : 03-11-2018
For the Petitioner:Mr. Abhinav Sharma, Advocate and Mr. Syeed Wajahat Ali, Advocate
For the Respondent:Mr. Sudesh Magotra, Advocate
The presumption of innocence and the general law of bail apply, and the rigour of Section 37 of the NDPS Act was found not to be applicable in this case.
Headnote:
NDPS Act - Bail Application - Sections 8/12/60 - [37] - The court discussed the provisions of Section 37 of the NDPS Act and its applicability to the case. It also referred to a previous judgment to support its interpretation of the section. The court emphasized the presumption of innocence and the general law of bail in reaching its decision to grant bail to the applicants.
Fact of the Case:
The applicants sought bail in a case under Sections 8/12/60 of the NDPS Act after being arrested for alleged possession of heroin. Their bail applications were previously dismissed, and they claimed to be falsely implicated.
Finding of the Court:
The court found that the applicants were in possession of a quantity of heroin that did not fall under the rigour of Section 37 of the NDPS Act. It emphasized the presumption of innocence and the general law of bail, ultimately granting bail to the applicants.
Issues: False implication, applicability of Section 37 of the NDPS Act, denial of bail, presumption of innocence
Ratio Decidendi: The court's decision was influenced by the interpretation of Section 37 of the NDPS Act, the presumption of innocence, and the general law of bail.
Final Decision: The applicants were granted bail with certain terms and conditions.
1. Through the medium of this application, the applicants are seeking bail in case FIR No.67/2018 under Sections 8/12/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) of Police Station Thanamandi, Rajouri.
2. The facts giving rise to the filing of this application, briefly stated, are that the applicants have been arrested on 10.05.2018 in case FIR No. 67/2018 by the Police Station Thanamandi, Rajouri alleging recovery of 8 gms and 6 gms. of heroin from applicant Nos. 1 and 2 respectively. The challan in the case has been presented on 06.06.2018 and formal charges have been framed against the applicants vide order dated 22.06.2018 by the Court of Principal District & Sessions Judge, Rajouri. It is contended that the applicants have denied the charges and have claimed for the trial. The challan is pending disposal for recording of the prosecution evidence.
3. It is further contended that the applications for grant of bail filed by the applicants before the trial court have been dismissed vide order dated 09.07.2018 on the ground that the drug trafficking is a menace and the persons involved in the same need to be dealt with iron hands. In the instant application, the applicants have taken the following grounds:
(a) That the applicants have been falsely implicated at the behest of some influentials despite the fact that the allegations against them are baseless.
(b) That the contraband allegedly recovered from the applicants is slightly higher than smaller quantity as provided in the notification appended to the NDPS Act and rigor as provided in the Section 37 of the NDPS Act is not applicable in the instant case.
(c) That every person is presumed to be innocent unless guilt is proved beyond reasonable doubt, in case the applicants are not released on bail, the same will amount to pre-trial punishment.
(d) That there are mitigating circumstances prima facie in favour of the applicants, who are behind the bars.
(e) That most of the prosecution witnesses listed in the challan are police officials, as such, their tampering or hampering at the hands of the applicants is impossible.
4. On the other hand, the State has filed its objections, in which, it has been stated that the applicants have committed a very heinous offence and have been arrested on 10.05.2018, and the challan has been produced before the court of law on 06.06.2018. It is further stated that there is no change of circumstances in the present bail application and the applications for bail were dismissed by the trial court on 09.07.2018. It is further contended that the applicants have deliberately and intentionally committed very heinous offence, which are serious in nature and are not entitled to bail and in case they are granted bail, there is every apprehension of tampering with the prosecution witnesses and jumping over the bail.
5. Learned counsel for the applicants submitted that the applicants have been falsely implicated in FIR No. 67/2018 of Police Station Thanamandi under Sections 8/22/60 NDPS Act. It is submitted that as per the prosecution story the applicants were found in possession of psychotropic substances and were booked under Sections 08/22/60 of NDPS Act. The applicants are in judicial custody since their arrest on 10.05.2018. It is also submitted that the bail applications moved by the applicants before the trial court came to be dismissed on 09.07.2018 and that the trial court has not appreciated the evidence in its correct prospective.
6. 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.
7. I have considered the submissions of learned counsel for the applicants as well as learned Government Advocate representing the State.
8. 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,
