Point of Law: Narcotic Intoxicate - Charas - Bail Dismissed - Under Section 37 of Act no accused can be released on bail when application is opposed by Public Prosecutor unless court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail.

ORDER :

1. The petitioner is facing trial in the court of learned 1st Additional Sessions Judge, Srinagar for commission of offences under sections 8 and 20 of the NDPS Act (for short the Act) arising out of FIR bearing No. 61/2019 of Police Station, Rainawari on the ground that on 13.11.2019 Police Party of Police Station, Rainawari during checking at Rainawari Chowk stopped the vehicle (Car i-20) bearing registration No. JK01AE 4787 and searched the same. During the course of search of the vehicle, a polythene bag was recovered beneath the driver’s (petitioner’s) seat and on opening, 39 pieces of charas like substance weighing 1 Kg and 900 gms were found. The challan came to be presented on 13.12.2019 and the accused was charged for the commission of offence under sections 8 and 20 of the Act vide order dated 01.02.2020. The petitioner earlier filed a bail application before the court of learned 1st Additional Sessions Judge, Srinagar but the same was rejected by the court vide order dated 02.04.2021 and after rejection, the present bail application has been filed primarily on the ground that the witnesses during the course of trial, have made contradictory statements and particularly witness No. 4 has turned hostile and also that no independent witnesses have been cited by the Investigating Officer and also that the learned trial court while rejecting the bail application of the petitioner has not appreciated the contention of the petitioner that the requirement of section 42 of the Act has not been complied with. It is further pleaded that the petitioner has been in custody for the last more than one year and the petitioner’s father is asthmatic patient and also that the petitioner has to maintain the two minor daughters.

2. Response stands filed by the respondent in which besides narrating factual aspects, it is stated that the offence committed by the petitioner poses a serious threat to the health and welfare of the people specially younger generation and, as such, he is not entitled to bail.

3. Mr. Shuja Ul Haq, learned counsel for the petitioner has vehemently argued that during the course of trial, almost all the witnesses except Investigating Officers have been examined by the prosecution and as such, the petitioner deserves to be enlarged on bail particularly in view of the fact that the witnesses examined by the prosecution have made contradictory statements, those belie the prosecution story.

4. Per contra, learned counsel appearing for the respondent has vehemently argued that the contraband recovered from the petitioner falls within the category of commercial quantity and at this stage the evidence led by the prosecution cannot be appreciated.

5. Heard and perused the record.

6. From the perusal of the record, it is evident that the petitioner is facing trial for commission of offences under sections 8 and 20 of the Act and he stands charged vide order 01.02.2020 by the trial court and as per the allegations, 01 Kg and 900 gms of charas has been recovered from the petitioner while he was driving a vehicle (i-20 Car). The quantity of the contraband recovered from the petitioner for which he is facing trial falls within the category of commercial quantity, as such, rigors of section 37 of the Act are applicable. No doubt the prosecution has almost exhausted its list of witnesses and only the Investigating Officers are yet to be examined but the contradictions as pointed out by the learned counsel for the petitioner cannot be appreciated while deciding an application for grant of bail. This Court has deliberately not appreciated the evidence of the witnesses placed on record by the petitioner lest it shall prejudice either of the parties during the course of trial but at the same time, from the perusal of the evidence placed on record, this Court is unable to form an opinion that the accused is not guilty of an offence for which he is facing trial. The contentions of the petitioner that the independent witnesses have no