The main legal point established is the presumption of innocence, the discretion of the judge in granting bail, and the importance of humane treatment of accused persons.

ORDER :

1. The petitioner herein has preferred the instant petition for grant of bail in case titled as “NCB v/s Irshad Ahmed Parray and Ors.” pending before the court of Principal Sessions Judge, Samba (for short “the trial court”) for offences under Sections 8, 20, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act of 1985”).

2. Case set up by the prosecution against the petitioner is that upon a secret information received from reliable sources on 22.10.2014, a truck bearing registration No. JK-13A-4571 coming from Kashmir Valley through Dhar Road to Samba came to be stopped at a Naka laid near Village Nud, Samba at Dhar Road on 23.10.2014 at about 0435 hours and one Intelligence Officer, namely, Satish Kumar Sharma disclosed his identity to the driver of the truck and two other persons sitting therein, whereafter the driver of the truck disclosed his name as Nazir Ahmad Lone - the present petitioner and the two other persons as Zakir Mushtaq Bandh – the cleaner of the truck and one Irshad Ahmed Parray – the friend of said cleaner.

3. It is further the case of the prosecution that a notice under Section 50 of the Act of 1985 was given to the driver and the two persons travelling in the truck that they have a right to get their personal search conducted in presence of any Magistrate or Gazetted Officer who, however, denied the necessity of such a Magistrate or Gazetted Officer and allowed the Intelligence Officer to conduct their search whereupon nothing has been recovered from them, however, upon the search of the cabin of the driver, one polythene bag came to be recovered kept below the back side of the driver’s seat wherein after opening the same, 38 round shape balls were recovered wrapped in yellow and white colour tape and on an inquiry, the driver of the truck, his cleaner as also the co-traveler reveal that the recovered material is Charas whereafter the material was tested with Drug Detection Kit which showed the positive result for Charas and the said material weighed 3.840 Kgs whereafter two samples were drawn and sealed and the remaining material was also sealed and test memo were prepared on spot.

4. According to the prosecution version on an enquiry about the source of drug, it was revealed that the substance belongs to one Mohd. Syeed Shah S/o Ghulam Rasool Shah R/o Dewanbagh, PO & PS : Bijbhera, District Anantnag (J&K) and that the driver of the truck (present petitioner) was unaware of the said substance at the departure of the truck, however, was informed about the same at Dhar Road by the cleaner and the co-traveler and that the substance had to be delivered to said Mohd. Sayeed Shah at Kalibari, Kathua.

5. It is further the case of the prosecution that Panchnama was prepared on spot and signatures of the petitioner, the cleaner and the co-traveler travelling in the truck was obtained besides recording the statements of independent witnesses, namely, Ramesh Kumar and Anand Kumar of Village Fant Kholi, Uttar Pradesh as also of the Intelligence Officer.

6. According to the prosecution version, notice under Section 67 of the Act of 1985 was given to the accused persons and their voluntary statements were recorded under Section 67 of the Act of 1985 wherein they admitted the recovery of the contraband of 3.840 Kgs Charas from the truck in question and also admitted to have received the same from Mohd. Sayeed Shah, to be delivered to said Mohd. Sayeed Shah at Kalibari, Kathua against the payment of Rs. 10,000/- to be paid by him to them and consequently, the said Mohd. Sayeed Shah also came to be arrested who made a statement under Section 67 of the Act of 1985 admitting therein that the substance belongs to him.

7. It is the case set up by the petitioner herein prior to the filing of the instant petition had filed an application for grant of bail, before the trial court on the ground that he is the sole bread earner of his family as also to look after his ailing mother, wh