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2022 Supreme(J&K) 258
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Aijaz Ahmad Wani – Petitioner
Versus
UT of J&K through P/S Yaripora – Respondent
Bail Application No. 60 of 2022
Decided On : 02-09-2022
Advocate Appeared:
For the Petitioner: Tahir Ahmad Bhat.
For the Respondent: Usman Gani.
The concentration of narcotic substances in the recovered drug and its compliance with the definition of 'manufactured drug' under the NDPS Act were central to the court's decision.
Headnote:
NDPS Act - Bail Application - Section 8/21, 8/22 - Summary of Acts and Sections: The court discussed the provisions of Section 8/21 and 8/22 of the NDPS Act, focusing on the definition of 'manufactured drug' and the concentration of Codeine Phosphate in the recovered drug. The court also referred to a relevant notification by the Central Government and a precedent from the High Court of Delhi regarding the percentage of Codeine in the samples.
Fact of the Case:
The petitioner sought bail in a case involving possession of narcotic substances under Section 8/21 and 8/22 of the NDPS Act. The trial court had dismissed the bail application, leading to the petitioner's appeal to the High Court.
Finding of the Court:
The court found that the recovered drug did not prima facie fall within the definition of 'manufactured drug' as per the NDPS Act. It also noted that the trial of the case was almost complete, and the petitioner had been in custody for over two years, with negligible chances of tampering with prosecution witnesses.
Issues: The issues revolved around the legality of the petitioner's custody, the interpretation of the NDPS Act provisions, and the consideration of evidence for bail application.
Ratio Decidendi: The court's decision was based on the interpretation of the NDPS Act provisions, the concentration of Codeine Phosphate in the recovered drug, and the petitioner's custody and trial progress.
Final Decision: The court allowed the bail application and admitted the petitioner to bail with specific conditions.
JUDGMENT :
SANJAY DHAR, J.
1. The petitioner has invoked jurisdiction of this Court under section 439 of the Cr.P.C. seeking bail in FIR No. 02/2020 for offences under Section 8/21 and 8/22 of the NDPS Act registered with Police Station, Yaripora Kulgam.
2. As per case of the prosecution, on 07.01.2020, the police party of Police Station, Yaripora, while performing Naka duty at Frisal Market, intercepted a vehicle bearing No. JK03A-3283, that was being driven by the petitioner. The vehicle in question was subjected to checking and a blue coloured polythene bag was found underneath the driver's seat. Upon opening, the bag was found to contain 40 bottles of Lykarex (100 ml each). The petitioner could not give any justification for possession of the aforesaid drugs. Accordingly, FIR No. 02/2020 for offences under section 8/21 and 8/22 of the NDPS Act came to be registered and investigation of the case was set into motion. During investigation of the case, the recovered bottles were seized. The accused was also arrested and the sample of the recovered drugs, after being sealed, was sent to the FSL for chemical examination. Upon receipt of the report of the expert, it was found that the bottles were containing narcotic substance, namely, Codeine Phosphate. Thus, offences under section 8/21 and 8/22 of the NDPS Act were found established against the petitioner and the challan was laid before the Court of Principal Sessions Judge, Kulgam. The charges for offences under section 8/21 and 8/22 of the NDPS Act were framed against the petitioner in terms of order dated 31.08.2021 and the trial of the case is in progress.
3. It appears that during the trial of the case, the petitioner had approached the trial court for grant of bail but his application has been dismissed by the learned trial court vide its order dated 13.05.2022.
4. It has been contended in the petition that the learned Principal Sessions Judge while dismissing the bail application of the petitioner has not considered the facts and circumstances of the case. It is further contended that the learned trial court has not applied its judicial mind to the material on record. It is also contended that the evidence led by the prosecution in the instant case does not even prima facie disclose the commission of the offences with which the petitioner has been charged. Lastly, it has been contended that the petitioner is in custody for last more than two years and the trial of the case is almost complete and, as such, he deserves to be enlarged on bail.
5. The respondent has resisted the bail application of the petitioner by filing a reply thereto. In the reply, it has been contended that commercial quantity of the manufactured drug has been recovered from the possession of the petitioner, as such, rigour of Section 37 of the NDPS Act is attracted to his case. It is further contended that the petitioner is involved in a heinous crime and, as such, he does not deserve any leniency from this Court.
6. I have heard learned counsel for the parties and perused the record of the case including the trial court record.
7. During the course of arguments, the main thrust of learned counsel for the petitioner was upon the contention that the report of the Drug Analyst, to whom the samples of the recovered drugs were sent for chemical examination, cannot be taken into account because she was not legally authorized to do so. It is contended that the learned trial court has failed to give any finding on this aspect of the matter while rejecting the bail application of the petitioner.
8. A perusal of the trial court record reveals that the sample of the recovered drugs has been examined by the Drug Analyst, Drug Testing Laboratory, Dalgate Srinagar. The learned trial court has rightly observed that the question whether the said Drug Analyst was legally authorized to examine the sample of the drug can be determined only after the trial of the case and not at the stage of considering the bail application.
9. I
