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2021 Supreme(J&K) 571
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sindhu Sharma, J.
Mustaq Ahmad Katoch – Petitioner
Versus
Union Territory of J&K – Respondent
Bail App. No. 16 of 2020
Decided On : 03-05-2021
Advocate Appeared:
For the Petitioner: Ajaz Bhat
For the Respondent: Jamrodh Singh
The main legal point established in the judgment is the importance of establishing possession as the main ingredient of the charge under the NDPS Act.
Headnote:
NDPS Act - Possession of Narcotic Substance - Section 8/20/29 - Section 37, Section 20 - The court discussed the application of Section 37 of the NDPS Act and the punishment described under Section 20 of the Act. It emphasized the importance of establishing possession as the main ingredient of the charge and highlighted the constraints of the offence related to cultivation, production, possession, sale, purchase, use, transport, import, export, or use of cannabis in contravention of the Act or the rules made thereunder.
Fact of the Case:
The case involved the possession of a narcotic substance by three accused, with only two found in possession at the time of arrest. The third accused was later arrested, but no narcotic was recovered from his possession. The trial court rejected the bail application based on the allegation of illegal possession of the narcotic substance and its potential sale to the market.
Finding of the Court:
The court found that the accused had not been found in possession of the narcotic substance at the time of arrest, and the trial court had not considered the evidence relied upon by the prosecution. It also considered the delay in concluding the trial and granted bail to the applicant based on the principles established in the case of State of Kerala Vs. Raneef.
Issues: The issues revolved around the possession of the narcotic substance, the consideration of evidence by the trial court, and the delay in concluding the trial.
Ratio Decidendi: The court's decision was influenced by the lack of evidence of possession at the time of arrest, the failure of the trial court to consider the evidence relied upon by the prosecution, and the principles established in the case of State of Kerala Vs. Raneef regarding the delay in concluding the trial.
Final Decision: The applicant was admitted to bail with specific conditions to appear before the Trial Court, not leave the territorial limits without permission, and not tamper with prosecution witnesses or evidence during the trial.
JUDGMENT :
Through Virtual Mode
1. FIR No. 84/2019 was registered in Police Station Banihal under section 8/20/29 of NDPS Act, 1985 on the basis of source information against three persons namely one Parvaiz Ahmad, Mushtaq Ahmad Katoch and Taqueer Ahmad, all residents of Village Panchal, Ukhral Tehsil Pogal Paristan District Ramban. After laying the trap, Police found only two persons namely Parvaiz Ahmad and Tauqeer Ahmad. Both were searched and were found in possession of Charas and were arrested on 20.06.2019.
2. The challan was filed against them in the Court of learned Special Judge under NDPS Act (Sessions Judge), Ramban. It appears that the applicant Mushtaq Ahmad Katoch did not accompany them and the investigating Police Officer also did not ask any of the accused about his whereabouts. However, a supplementary challan was filed in the court on 13.11.2019 stating that even though FIR No. 84/2019 was registered against three accused including the applicant but the applicant Mushtaq Ahmad Katoch managed to escape and has thrown charas on the nearby Nallah. He was arrested on 05.11.2019. The learned counsel for the applicant has argued only on some legal points regarding the non-application of Section 37 of the NDPS Act in the case of the applicant. This requires reference to Section 37 of the NDPS Act which is reproduced below:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) Every offence punishable under this Act shall be cognizable.
(b) No person accused of an offence punishable for offences under section 19 or section 24 of section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) The Public Prosecutors has been given an opportunity to oppose the application for such release, and
(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitation on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
3. Since the substance involved is narcotic, the punishment for which is described under section 20 of the Act, as such, this also requires reference. The Section reads as under:
“20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder:-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable1 [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),-
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
4. Thus, the constraints of the offence are cultivation, production, manufacturing, possession, sale, purchase, use, transport, im
