The rigors of Section 37 of the NDPS Act apply in cases involving trade in commercial quantity of narcotics. The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and is not likely to commit any offence while on bail.

JUDGMENT :

1) “It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.”

(Hon’ble Supreme Court in Union of India v. Ram Samujh, (1999) 9 SCC 429)

2) In NDPS cases, where there are allegations in respect of recovery of commercial quantity of contraband from the accused, refusal of bail is a rule and grant an exception subject to satisfaction of the conditions as prescribed under Section 37 of the NDPS Act. In order to prevent the turning of “Crown of India and heaven on earth” to a “drug haven”, strict adherence to the provisions contained in section 37 N.D.P.S Act, is a need of hour, when the number of NDPS cases are increasing day by day.

3) Both these bail applications arise out of FIR bearing No.283/2022 under Sections 8/21/29 of NDPS Act registered with Police Station, Kupwara, as such, they were heard together and by this common order both these applications are proposed to be decided.

4) Bail App No.58/2023 was initially filed by Sajad Ahmad Bhat and Ishfaq Habib Khan, however, subsequently, the application on behalf of Ishfaq Ahmad Khan was withdrawn vide order dated 12.07.2023.

5) All the petitioners in both the applications had been working as Special Police Officers in the Police Department. It is stated that the petitioners have been falsely implicated in the commission of above mentioned offences despite the fact that no recovery of any contraband has been effected from them and the petitioners have been arrayed as accused solely on the basis of disclosure statement made by the co-accused. The petitioners had earlier filed bail applications, however, the same were dismissed by the Court of learned Additional Sessions Judge (PO FTC), Kupwara, by virtue of common order dated 18.03.2023. After the dismissal of aforesaid bail applications, the petitioners have approached this Court for grant of bail on identical grounds. It is stated by the petitioners that the alleged contraband recovered from the possession of the co-accused is otherwise not of commercial quantity, as such, rigours of Section 37 of the NDPS Act are not applicable in the case of petitioners.

6) The respondents have filed the response and besides narrating the factual aspects of the case, it has been stated that the petitioners are not entitled to the concession of bail, as the rigors of section 37 NDPS are applicable in the present case.

7) Mr. Altaf Haqani, learned senior counsel appearing for the petitioners, submitted that after the dismissal of bail applications, the charge-sheet has been filed and even in the charge sheet, there is no allegation in respect of recovery of any contraband from any of the petitioners and the petitioners have been arrayed as accused in the charge-sheet only on the basis of statement of PW-18, which otherwise do not link the petitioners with the commission of alleged offences. He further submitted that the petitioners have been in custody for the last nearly ten months and, as such, the continuous incarceration of the petitioners will amount to punishment without trial. It was also urged by Mr. Haqani that the petitioners have been arrayed as accused on the basis of confessional statement of the co-accused and there is no concrete evidence against them which can be finally made a basis to convict the petitioners. He placed reliance upon the following judgments:

a. State v. Pallulabid Ahmad Arimutta & ors. (2022) 12 SCC 633.

b. Amit Ranjan v. Narcotics Control Bureau.2022 SCC OnLine 1532

c. Deepak Nag