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2020 Supreme(J&K) 401
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sanjay Dhar, J.
(Through Virtual Mode)
Tanveer Ahmad Rather and Anr.
Versus
UT of J&K through P/S Sumbal
Bail App No.44/2020
Decided on 28-10-2020
For the Petitioner(s):Mr. N.A. Ronga, Advocate
For the Respondent(s): Mr. Sheikh Feroz, Dy. AG
Headnote:
NDPS Act - Section 8/22/29 – FIR – Enquiry - Petition are that a police party of Police Station while patrolling spotted three persons carrying bags in hands coming towards - Persons on seeing police party tried run away but police party chased and out of three two persons were nabbed whereas third one left his bag on spot and ran away- One of persons nabbed was identified as accused whereas or one was identified as accused Upon enquiry from se two accused persons third accused who had fled away from spot was identified bag recovered from accused contained Codeine Phosphate and bottles Codeine Phosphate whereas bag recovered from accused Ahmad contained bottles Codeine Phosphate bottles Codeine Phosphate and bottles of Codeine- bag left behind by accused contained bottles Codeine Phosphate Codeine Phosphate and recovered material was seized on spot and samples were taken and sealed –Held, Case of water one liter is equivalent to one gram- Higher density of liquid more will be mass of one liter of such liquid- So far as solution of Codeine is concerned its density is higher than that of water- therefore even if Court use conversion applicable to water both petitioners were found to be in possession of more than one kg of Codeine solution which falls under category of as commercial quantity- Thus rigor or Section NDPS Act is applicable to case of both petitioners provides for fulfillment of two conditions before a bail can be granted an accused- Firstly Public Prosecutor has to given an opportunity to oppose application and secondly if Public Prosecutor opposes application Court has to be satisfied that re are reasonable grounds for believing that accused person is not guilty of such offence and that he is not likely to commit any offence while on bail- conditions laid down in Section NDPS Act are mandatory in nature- Court supported in my aforesaid view by ratio laid down by Supreme Court in case of Union of India case counsel for State has opposed bail application- Upon perusal of material on record Court unable to find any ground much less a reasonable ground for believing that petitioners are not guilty of offence - Petitioners have not been able to make out a case of such nature- Thus re is no merit in application of petitioners – Petition dismissed
Judgment
Sanjay Dhar, J.—Through the medium of instant bail application, petitioners are seeking bail in FIR No.47/2020 for offences under Section8/22/29 of NDPS Act of Police Station, Sumbal, Bandipora.
2. The facts giving rise to the filing of the instant petition are that on 22.03.2020, a police party of Police Station, Sumbal, while on patrolling, spotted three persons carrying bags in their hands coming towards Sumbal. These three persons on seeing the police party tried to run away but the police party chased them and out of the three, two persons were nabbed whereas the third one left his bag on spot and ran away. One of the persons nabbed was identified as accused Mushtaq Ahmad Bhat whereas other one was identified as accused Tanveer Ahmad Rather. Upon enquiry from these two accused persons, the third accused, who had fled away from the spot, was identified as Hilal Ahmad Wani. The bag recovered from accused Mushtaq Ahmad Bhat contained 15 bottles of Omrex (Codeine Phosphate) and 8 bottles of Rexorid (Codeine Phosphate) whereas the bag recovered from accused Tanveer Ahmad contained 13 bottles of Omrex (Codeine Phosphate), 4 bottles of Rexorid (Codeine Phosphate) and 4 bottles of Sivzcodiene(Codeine. The bag left behind by accused Hilal Ahmad Wani contained 8 bottles of Rexorid (Codeine Phosphate), 21 bottles of Omrex (Codeine Phosphate) and 6 bottles of Sivzcodiene (Codeine Phosphate). The recovered material was seized on spot and samples were taken and sealed. All the three accused were arrested and during the investigation of the case, accused Hilal Ahmad Wani made a disclosure statement on the basis of which 22 more bottles of Sivzcodiene (Codeine Phosphate) were recovered and seized.
3. After investigation of the case, offences under Section 8/22/29 of the NDPS Act were found established against all the three accused and charge sheet was laid before the trial court. Bail application of all the three accused stands dismissed by the learned trial court vide its order dated 02.06.2020 on the ground that commercial quantity of Narcotic Drugs has been recovered from the petitioner and, as such, they are not entitled to the concession of bail.
4. Petitioners Tanveer Ahmad Rather and Hilal Ahmad Wani have, in the instant petition, contended that they have been falsely implicated in the case; that the investigation of the case is complete; that the mandatory provisions of Section 50 of the NDPS Act have not been followed in the instant case; that the provisions contained in Section 42 and 57 of the NDPS Act have been observed in breach; that the quantity of Narcotic Drugs recovered from the petitioners does not fall in the category of commercial quantity; that the petitioners are suffering from multiple ailments and that petitioners are prepared to abide by all the conditions that may be imposed by this Court in case they are enlarged on bail.
5. The respondent has resisted the bail application of the petitioners by filing objections thereto. In the objections, respondent has contended that the application of the petitioners is without any merit; that the petitioners are involved in heinous offences which are against the society; that quantity of banned drugs recovered from the petitioners falls in the category of commercial quantity and, as such, rigor of Section 37 of the NDPS Act is applicable to the case of the petitioners and that enlarging the petitioners on bail will be against the public interest.
6. I have heard learned counsel for the parties and perused the record of the case including the record of the trial court.
7. The main contention raised by learned counsel for the petitioners during the course of arguments is that in the instant case investigating agency has not complied with the mandatory provisions contained in Sections 42, 50, 57 and 67 of the NDPS Act. On this ground it is urged that the petitioners are entitled to the concession of bail. In order to support his contention, the learned counsel has re
