Point of Law: Narcotic substances - Bail dismissed - 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 instant bail application has been filed by the petitioner, who is facing trial in challan, titled, Union Territory of J&K vs. Harvinder Singh arising out of FIR bearing No. 58/2017 registered with Police Station, Chenani for commission of offences under Sections 8, 21 and 15 of the NDPS Act (for short the Act) for grant of bail. Earlier he had filed the bail application before the court of Principal Sessions Judge, Udhampur (hereinafter to be referred as the trial court) and the same was rejected by the learned trial court vide order dated 08.09.2020. The petitioner has filed the instant bail application on the ground that the police has allegedly recovered the Heroin weighing 3 Kg 905 grams and Poppy Straw weighing 2 Kg from the applicant/petitioner and after completion of the investigation, the challan was filed before the trial court and the learned trial court vide order dated 21.07.2017 has framed the charges. The prosecution has led evidence and has examined Sub Inspector Balbir Chand who had allegedly made the chance recovery and on whose docket, FIR (supra) was registered and also the two witnesses of the seizure memo of the alleged recovery of the contraband have been examined.

2. The petitioner has filed the bail application primarily on the ground that the Investigating Officer has not complied with the mandatory provisions of sections 42, 43 and 50 of the Act, the evidence led by the prosecution is contradictory and though the prosecution case is that the recovery of the alleged contraband was chance recovery but the prosecution witnesses have stated that they had prior information about the vehicle having the contraband.

3. Response stands filed by the respondent in which it is stated that the offence is very heinous and is against the society at large and the petitioner has committed a heinous crime and does not deserve any grant of bail. It is further submitted that the Sub Inspector, Balbir Chand along with Sgct Mohd Yaqoob, Hukam Chand and SPO Subash Chander were performing duty at Naka Point. During checking one vehicle bearing No. JK-02AU-3131 on the way from Tunnel side to Udhampur was signaled for checking but the driver of the vehicle did not stop at the naka point and tried to fled away from the spot. The vehicle was intercepted and during the course of enquiry, the driver of the vehicle disclosed his name as Harvinder Singh, petitioner herein and during search of the vehicle, 3 Kg 915 grams of Heroin and Poppy Straw were recovered from the dickey, during checking of the vehicle and on enquiry the petitioner could not get any satisfactory reply. SHO Police Station, Chenani visited the site and prepared the site plan and conducted photography. On search, contraband Heroin weighing 3 Kg 915 grams and Poppy Straw weighing 2 Kg were found hidden in a Box made therein in the dickey of the said vehicle. Pursuant to the docket, FIR bearing No. 58/2017 under sections 8, 15 and 21 of the Act was registered and after the completion of the investigation, challan was filed in the trial court and as per the report, the prosecution is leading its evidence in the challan.

4. Mr. Rakesh Chargotra, learned counsel for the petitioner has vehemently argued that the witnesses have made contradictory statements which demonstrate that the prosecution story is concocted. He further lay stress that the prosecution case is based upon the factum of chance recovery whereas couple of prosecution witnesses have deposed that they have prior information of the contraband being transported in a vehicle and further that the mandatory provision under sections 42, 43 and 50 of the Act have not been complied with by the Investigating Officer so the petitioner is entitled to bail. At the same time, Mr. Chargotra very candidly admitted that section 50 of the Act has no applicability in the present case. Learned counsel for the petitioner has placed reliance a catena of judgments in State of Punjab vs. Balbir Singh, P. Simanchal Pa