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2018 Supreme(J&K) 986
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M.K. Hanjura, J.
Balvinder Kumar and Others – Appellants
Versus
State – Respondent
B.A. No. 109 of 2018
Decided On : 06-09-2018
Advocate Appeared:
For the Appellant : Wajid Hasib.
For the Respondent: Asif Maqbool.
The discretion to grant bail in non-bailable offences must be exercised according to the rules and principles laid down by the Code and judicial decisions. Bail should not be withheld as a means of punishment, and deprivation of liberty is tantamount to punishment.
Headnote:
NDPS Act - Bail Application - Section 8/15 NDPS Act - Section 167 Cr.P.C. - Section 37 of the NDPS Act
Fact of the Case:
The police intercepted a car and seized Poppy Straw in powdered form from the vehicle. The accused filed a bail application, claiming innocence and arguing that the seized contraband did not fall within the commercial quantity under Section 37 of the NDPS Act. The lower court rejected their bail application.
Finding of the Court:
The High Court held that it had concurrent jurisdiction with the Sessions Court to consider the bail application. It also clarified that the accused were not entitled to bail after 60 days of custody due to an amendment in the Jammu and Kashmir Criminal Laws. The Court considered the seriousness of the offence and the societal concerns related to drug trafficking before granting bail to the applicants.
Issues: The main issues were the entitlement to bail after 60 days of custody, the severity of the offence, and the application of Section 37 of the NDPS Act.
Ratio Decidendi: The Court emphasized that the discretion to grant bail in non-bailable offences must be exercised according to the rules and principles laid down by the Code and judicial decisions. It also highlighted that bail should not be withheld as a means of punishment and that deprivation of liberty is tantamount to punishment.
Final Decision: The applicants were granted bail on the condition of furnishing a personal bond and surety, along with specific terms and conditions.
JUDGMENT :
M.K. Hanjura, J.
1. On 30.04.2018, a police patrol party of Police Station Zainapora, Shopian, intercepted a Santro Car, bearing Registration No. HP-47-5151. While searching the said vehicle, 02 nylon bags, containing Poppy Straw in powdered form, weighing 23 kgs were seized and sealed on the spot. Three persons, including the driver, namely Balvinder Kumar, Santok Lal and Sana-u-lah Dar, were travelling in the said car. Balwinder Kumar and Santok Lal were apprehended on the spot whereas Sana-u-lah succeeded in fleeing from the spot, as a sequel to which, a case bearing FIR No. 18/2018 u/s. 8/15 NDPS Act was registered against them at Police Station, Zainapora, Shopian, with which the investigation ensued. During the investigation, the site plan was prepared and the vehicle was seized. The statements of the witnesses u/s. 161 Cr.P.C. & 164 Cr.P.C. were also recorded. The third accused, who had given a slip to the police patrol party at the time of the seizure of the contraband, was also apprehended. Thereafter the opinion of the Forensic Science Laboratory (FSL) was obtained and a Charge Sheet was laid as against the accused/ applicants before the Court of law on 25.07.2018.
2. The applicants-petitioners filed an application for the grant of bail in their favour in the aforesaid FIR before the Court of the learned Principal Sessions Judge, Shopian, pleading therein that they are innocent and have been falsely implicated in the case. They also stated that the seized contraband does not fall within the scales of the commercial quantity and, as such, the rigor of section 37 of the NDPS Act is not attracted. In the end they prayed that their bail application be accepted and they be enlarged on bail.
3. The applicants 1 & 2, filed a subsequent application, praying therein that they have completed 70 days in custody and, as such, a right, in terms of section 167 Cr.P.C. has accrued to them for the grant of bail in their favour. However, the learned District Judge, Shopian, after clubbing both the applications of the applicants together, rejected them by a common order dated 20-07-2018.
4. Aggrieved by the order of the learned Sessions Judge, Shopian, the applicants have filed the instant application before this Court for the grant of bail in their favour, on the grounds, inter-alia, that the charge-sheet has been laid against them before the competent Court, wherein the police authorities have contended that they are involved in the commission of offences u/s. 8/15 NDPS Act. The applicants have further stated that they have been falsely implicated in the case. The mandatory provision of the NDPS Act has been violated in the case and, therefore, any further detention of the applicants is illegal, unwarranted and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The applicants have further contended that they have been in the custody for the last so many months by now and their continued detention has hampered them from proving their innocence. It has also been added that a small quantity of Narcotics has been recovered from them and that they will not tamper with the prosecution evidence and will abide by the conditions, whatsoever, are imposed on them, in case they are admitted to bail.
5. The respondent has resisted and controverted the application of the applicants chiefly on the grounds that Fikki was recovered from their possession. They have committed a heinous offence. The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the applicants seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected.
6. Heard and considered.
7. Risking repetition, what requires to be repeated and reiterated here is that the learned Sessions Judge, Shopian, has rejec
