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2021 Supreme(J&K) 78
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
JAVED IQBAL WANI, J.
Saqib Ali Reshi – Petitioner
Versus
UT of J&K through SHO P/S Batamaloo – Respondent
Bail Application No. 01 of 2021
Decided On : 18-05-2021
Advocate Appeared:
For the Petitioner: Mr. Mohammad Altaf Khan.
For the Respondents: Mr. B.A. Dar, Ms. Afroza Hassan.
Point of law: Grant of bail - Parity - Parity cannot be the sole ground for granting bail yet it has also been laid down that if on examination of a given case it transpires that the case of the petitioner before the court is identically similar to the accused who has been bailed out.
Headnote:
Code of Criminal Procedure, 1973 - Section 497 - NDPS Act - Sections 8, 21, 50, 37, 19, 24, 27 - Bail Application - Petitioner seeks through medium of instant petition, bail in case FIR for commission of offences punishable under Section 8/21 NDPS Act, registered at Police Station - Instant bail application is 3rd in a row filed by petitioner - First bail application filed by petitioner has been dismissed by court of 4th Additional Sessions Judge Srinagar, vide order whereas, second bail application filed by petitioner has been dismissed by court of 2nd Additional Sessions Judge, vide order.
Finding of the Court:
Perusal of record reveals as also having been noticed by Court of 4th Additional Sessions Judge, in its order supra the offences alleged to Petitioner does not fall within ambit and scope of Section 37 of Act which position has even not been specifically denied by respondents in their objections - Further perusal of record and in particular order passed by court of 2nd Additional Sessions Judge supra would reveal that second bail application of petitioner has been primarily rejected on ground that a successive and subsequent bail application on very same facts/grounds on which earlier bail application was rejected cannot be entertained, unless it is shown that there is a substantial change in facts and circumstances of case - First question in view of above that would arise for consideration of this court, would be as to whether a successive bail application for bail will or will not lie before this court - Law evolved on subject is that jurisdiction of Sessions Court and High Court to consider an application for bail is concurrent - If Sessions court has rejected an application for bail, High court can consider prayer afresh in a subsequent application moved on same set of facts particularly when order of rejection of bail is bad and perverse on fact of it - Court is conscious of legal position enunciated by various courts that parity cannot be sole ground for granting bail yet it has also been laid down that if on examination of a given case it transpires that case of petitioner before court is identically similar to the accused who has been bailed out, then desirability of consistency will require that such an accused should also be released on bail - It is manifest that petitioner herein is entitled to claim parity for grant of bail qua co-accused named above - Bail Granted.
Result: Application Allowed.
JUDGMENT :
JAVED IQBAL WANI, J.
1. The petitioner seeks through the medium of instant petition, bail in case FIR No. 140/2020, (for short the FIR) for commission of offences punishable under Section 8/21 NDPS Act, registered at Police Station, Batamaloo.
2. The instant bail application is 3rd in a row filed by the petitioner. The first bail application filed by the petitioner on 08.10.2020 has been dismissed by the court of 4th Additional Sessions Judge Srinagar, vide order dated 02.11.2020, whereas, the second bail application filed by the petitioner has been dismissed by the court of 2nd Additional Sessions Judge, Srinagar vide order dated 17.12.2020.
3. Petitioner is stated to be eighteen years old boy, studying in class 12th having been arrested in connection with the FIR supra on 26.09.2020, while travelling in a car with another person namely Saqib Nisar Bhat.
4. It is being stated that the petitioner has not committed any offence but has been falsely implicated in the FIR supra.
5. It is being next stated that the courts below on one hand while dismissing earlier bail applications of the petitioner on 02.11.2020 and 17.12.2020, yet on the other hand the above named co-accused on 18.11.2020 came to be granted bail by the court of 2nd Additional Sessions Judge, Srinagar.
6. It is being further stated that 05 bottles of Maleate and Blurex and Chlorpheniramine Dextromethorphan Hydrobromide 30 bottles of Rex DX which contains Dextro-methorphan Hydrobromide and Chlorpheniramine Maleate 100 ml, Sparsprimprq 720 capsules have been allegedly recovered from the vehicle bearing registration No. GOIR-2246 (Alto) by the respondents and that Dextromethorphan Hydrobromide and Chlorpheniramine Maleate does not contain any kind of narcotic substance as per the law, as both preparations do not fall under the category of narcotic drugs notified in Notification No. S.O. 1055(E) dated 19.10.2001 issued by the Central Government and published in the Gazette of India (extra) Part II Section 3(ii).
7. It is being stated that the alleged recovered substances does not fall under the category of commercial quantity as provided in the Act and thus the provisions of Section 37 of the Act are not attracted.
8. It is being further stated that the allegations leveled against the petitioner from the very inception are vague and contradictory and that the procedural safeguards provided under Section 50 of the Act have been totally disregarded by the respondents.
9. Per contra, respondents in their objections while opposing the grant of bail to the petitioner have stated that the petitioner and the co-accused namely Saqib Nisar Bhat were found sitting in the vehicle in question in suspicious situation and upon search of the vehicle the narcotic substances were recovered. The petitioner and co-accused are stated to have failed to give any explanation with regard to the possession of the substance in the vehicle upon questioning thus resulting into registration of the FIR supra and consequently setting into motion investigation thereof.
10. It is being stated that samples of the recovered substances have been taken and sent for FSL for chemical analysis. During the investigation of the case co-accused named above is admitted to have been granted bail by the court 2nd Additional Sessions Judge, Srinagar. Charge sheet is also stated to have been filed before the court of 2nd Additional Sessions Judge Srinagar on 28.12.2020.
11. The petitioner is stated to have committed a serious and heinous offences disentitling him to the concession of bail.
12. Heard learned counsel for the parties and considered the matter.
13. Learned counsel for the parties while making their respective submissions reiterated the contentions raised and grounds urged in their respective pleadings.
14. It is pertinent and profitable to mention here that the provisions of 37 of the Act are attracted for commission of offences under Section 19, 24 and 27-A only when a commercial quantity of Drug or subst
