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2017 Supreme(J&K) 1003
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Pawan Kumar - Appellants
Vs.
State - Respondent
B.A. No. 69 of 2017
Decided On : 12-10-2017
For the Appellant : Koshal Parihar, Adv.
For the Respondents: R.S. Jamwal, Dy. A.G.
The weight of the contraband alone determines its quantity, and accused in possession of commercial quantity cannot claim bail as a matter of right.
Headnote:
NDPS Act - Bail Application - Section 8/20 - [37]
Fact of the Case:
The petitioner seeks bail on the grounds that the contraband seized does not fall under commercial quantity and that he is a respectable citizen with deep roots in society. The prosecution has only produced one witness who contradicted their version, and the petitioner has been in judicial custody for over 15 months without trial.
Finding of the Court:
The court found that the accused was in possession of 1.05 KG of charas, which is a commercial quantity, and therefore, the restrictions on granting bail under section 37 of the NDPS Act apply. The court also emphasized the serious threat of drug menace to society and the need to deal with such offenders firmly.
Issues: The main issue was whether the petitioner should be granted bail despite being found in possession of a commercial quantity of contraband.
Ratio Decidendi: The court held that the weight of the contraband alone determines its quantity, and the accused cannot claim bail as a matter of right in such cases. The court also emphasized the serious threat of drug menace to society and the need to deal with such offenders firmly.
Final Decision: The petition for bail was dismissed at this stage, as the court was not satisfied that there were reasonable grounds for believing that the accused was not guilty of the offence.
JUDGMENT :
Sanjay Kumar Gupta, J.
1. Through the present bail application, the Petitioner-Pawan Kumar, seeks bail, inter alia, on the ground that on refusal to admit the petitioner on bail in FIR No. 07/2016 for offence under section 8/20/29 of NDPS Act by the learned Principal Sessions Judge, Ramban, vide order dated 03.03.2017, has led the petitioner to approach this Court for grant of bail. Learned counsel for the petitioner has stated that on 18.01.2016 an FIR No. 07/2016 came to be registered with the P/S, Banihal against the petitioner for recovery of Cannabis (Charas) for commission of offence under section 8/20 of NDPS Act, which resulted into the arrest of the petitioner on the same day and now is in judicial custody for more than 15 Months. The aforesaid FIR culminated into the presentation of challan before the Learned Principal Session Judge, Ramban. That on 22.04.2016 the Ld. Principal Sessions Judge, Ramban framed the charge u/s. 8/20 of NDPS Act, against the petitioner herein and the prosecution was directed to produce evidence and more than 18 opportunities have been taken by the prosecution to produce the witnesses before the trial court and they have only produced one witness namely Sh. Ashfaq Hussain (PW-3) and has totally contradicted the prosecution versions from wherein can be reasonably believed that the petitioner has not committed any offence.
2. Learned counsel has stated that the bail application filed by the petitioner has been dismissed on 03.03.2017 only on the ground that contraband is commercial quantity although the same from the facts of the case is not so and rigor of section-37 does not apply, yet not finding with regard to same has been given by the lower court. That the petitioner is the permanent resident of Reasi Distt. and driver by profession having deep roots in the society being respectable person in the society and if the petitioner is not admitted to bail, it will lower down the image of the petitioner/s in the society and there is special provision in the Cr.P.C. for admitting the bail to young persons and also first offender and of young age as there is no such allegation by the prosecution that the petitioner is involved in any other case and further there is no chance of fleeing from the trial.
3. Learned counsel has further stated that since the weight of the contraband seized by the police has not been done in the present case which determines the quantity of the contraband and also the rigor of section 37 of NDPS Act, yet from the facts alleged in the challan, the weight of the contraband along with the maize cobs has been done which is about 1.05 Kg and commercial quantity as per the schedule is above 1 Kg and it is the weight of contraband only which determines the contraband, as commercial quantity, small quantity or intermediate quantity and not the weight of the contraband along with the article in which it is carried and therefore certainly the weight of 65 maize cob has been included in the weight done by the prosecution and therefore the contraband certainly does not fall under the commercial quantity as such the rigor of section 37 is not applicable in the present case, as such the petitioner is entitled to bail.
4. Learned counsel has stated that it is settled law, as to when the bail is granted in non-bailable offences and there are two categories, as held by Apex Court in one of its basic judgment reported in AIR 1978 SC 179. First Category are those offences which carry punishment of death sentence and life imprisonment exclusively and in those case the ball can be granted only when the Hon'ble Court comes to the conclusion that there are reasonable grounds of believing that the accused is not guilty of offence alleged and then only the accused is entitled to bail, whereas in all other non-bailable offences, the Apex Court has held that the judicial discretion will always be exercised by the court in favour of granting bail subject to sub-section (3) of section 437 o
