Severity of the offence and potential danger to society are key factors in denying bail under Section 439 of Cr.P.C. for offences under Section 8/15 of NDPS Act.

JUDGMENT :

1. Petitioner/accused has sought regular bail in terms of Section 439 of the Code of Criminal Procedure in case FIR No. 70/2020 for the commission of offences punishable u/ss 8/15 of Narcotic Drugs and Psychotropic Substances Act 1985 (for short the “NDPS Act"). It is averred, that the petitioner is a peace loving and law abiding citizen of India who enjoys the guarantee of fundamental rights as enshrined in part-III, in particular right to life and liberty as postulated under Article 21 of the constitution of India which cannot be curtailed without due process of law, however, the respondent has vitiated the above said right of the petitioner in the given facts and circumstance of the case; that the respondent presented chargesheet u/ss 8/15 NDPS Act in the above FIR No. 70/2020 on 17.12.2021 in the court of Pr. Sessions Judge Udhampur in absence of accused, who later on surrendered before the trial court on 16.04.2022, whereafter, petitioner filed an application for grant of bail which was rejected by the trial court of Pr. Sessions Judge Udhampur on 16.07.2022. It is moreso averred, that the petitioner is young aged person and belongs to respectable family, however, the respondent has laid chargesheet against him before the trial court for the allegations, that petitioner was caught red handed by police on 03.06.2020 while transporting poppy straw in two plastic bags of the weight of more than 52.500 kg in tractor trolley bearing registration No. JK14-D-6019, and when the police officials were completing the formalities on spot, petitioner gave a slip to the police party by jumping from the trolley and ran away from the spot by taking advantage of the darkness; that the rigors of Section 37 of NDPS Act cannot be made applicable in the case in hand as petitioner has been implicated in false and frivolous case; that the court below has passed the order dated 16.07.2022 rejecting his bail application without appreciating the material on record; petitioner immediately after gaining knowledge regarding presentation of chargesheet surrendered before the court on his own, as such, there is no likelihood of his jumping over the bail conditions if admitted to bail as the petitioner who is behind the bars for the last more than 1 year is ready to furnish bail and personal bonds to the satisfaction of the court.

2. Respondent, per contra, has vehemently opposed the bail on the grounds, that the offence committed by the accused is against society and prejudicial to the interest of general public, therefore, if the accused is enlarged on bail, there is every probability/likelihood of his tampering with the prosecution evidence, hence, the accused deserves to be kept at bay and not granted bail, moreover, the enlarging of accused on bail at this stage would encourage the offenders of the like nature. It is contended, that on 29.10.2020 police while performing patrolling duty at Malhar NHW and it's surrounding area, at about 2200 hrs when reached at Malhar, one Tractor bearing registration No. JK14D-6019 which was driven by the accused/driver from Link Road Malhar towards NHW was asked to stop for checking purpose and during checking of the said tractor, two plastic bags of yellow color were found loaded in the trolley of the said tractor, the driver/accused of the said tractor was asked to open the said plastic bags and on opening, poppy straw like substance weighing 53 kgs were recovered from the bags from the possession of the accused who due to darkness jumped from the tractor and ran away from the spot. It is moreso contended, that the contraband was taken in possession, samples for FSL examination/expert opinion were drawn and poppy straw was detected, I.O recorded the statements of witnesses u/s 161 Cr.P.C, made all possible efforts to arrest the accused person, but his whereabouts could not be traced out, after completing all the legal formalities, I.O proved the offence u/s 8/15 NDPS Act against the petitioner/accused an