Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 679

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Rajnesh Oswal, J.
Mohd. Ashraf Sheikh - Petitioner
Versus
Union Territory of J&K – Respondent
Bail App No. 175/2021
Decided On : 03-12-2021

Advocates:
Advocate Appeared:
For the Petitioner: M.A. Goni, Tanzeel Elahi
For the Respondent: Aseem Sawhney

IMPORTANT POINT
The court established that in bail applications under the NDPS Act, the absence of material evidence linking the accused to the crime can justify the granting of bail, even in serious cases.

Headnote:
BAIL - NDPS ACT - Sections 8, 21, 22, 29, 37 NDPS Act - The court discussed the provisions of the NDPS Act, particularly Section 37, which outlines the conditions under which bail may be granted for offenses under the Act. The court interpreted that the prosecution must provide reasonable grounds for believing the accused is not guilty for bail to be granted. The absence of evidence connecting the petitioner to the crime led the court to conclude that the petitioner met the criteria for bail despite the serious nature of the charges.
Fact of the Case:
The petitioner sought bail after being in custody since November 27, 2020, for charges under the NDPS Act, specifically for offenses related to heroin possession. The trial court had previously denied bail, citing concerns about potential tampering with evidence and the seriousness of the charges.
Finding of the Court:
The court found that there was no direct evidence linking the petitioner to the crime, as no contraband was recovered from him, and the allegations were based solely on statements made by another accused, which were deemed inadmissible. The court emphasized the lack of material evidence against the petitioner.
Issues: Whether the petitioner is entitled to bail under the provisions of the NDPS Act, particularly in light of Section 37, which imposes restrictions on bail for serious offenses.
Ratio Decidendi: The court held that while Section 37 of the NDPS Act imposes stringent conditions for bail, the absence of evidence connecting the petitioner to the offense warranted the granting of bail. The court clarified that it was not required to determine guilt but only to assess if there were reasonable grounds for believing the petitioner was not guilty.
Final Decision: The court granted bail to the petitioner, subject to specific conditions, including the requirement for sureties and restrictions on contacting prosecution witnesses.

JUDGMENT :

Rajnesh Oswal, J.

1. The petitioner has filed the present application for grant of bail in a charge sheet arising out of FIR bearing No. 114/2020 for offences under Sections 8/21/22/29 NDPS Act on the ground that the petitioner has been in custody with effect from 27.11.2020 in FIR mentioned above and that the petitioner is innocent and has not committed any offence.

2. It is stated that petitioner had filed an application for grant of bail before the Court of Additional Sessions Judge, Kathua (hereinafter to be referred as the trial Court) where the challan was pending but the learned trial Court vide order dated 29.05.2021 dismissed the said bail application. It is further stated that the petitioner has been arrayed as an accused in the challan, without there being any recovery from him and has not played any role in the illegal act but the learned trial Court rejected the said bail application on the ground that the petitioner may tamper with the evidence and repeat the offence.

3. Response stands filed by the respondents in which it is stated that the offence committed by the petitioner is heinous is nature and as such, he is not entitled to bail. Besides, factual aspects of the case have been narrated.

4. Mr. M.A. Goni, learned Sr. counsel appearing on behalf of petitioner vehemently argued that the petitioner was arrested pursuant to the interrogation of the accused, Dilbagh Singh and no contraband has been recovered from the petitioner. He further submitted that there is no evidence on record to connect the petitioner with the alleged commission of offence.

5. Mr. Aseem Sawhney, learned counsel appearing on behalf of respondent vehemently argued that the provisions of Section 37 of the NDPS Act are applicable in the present case and as such, the petitioner cannot been larged on bail.

6. Heard and perused the scanned record of the trial Court.

7. From the record, it is evident that on 17.11.2020, Head Constable Lekh Raj produced a docket written in Urdu by Sub-Inspector Arun Salathia for registration of the case, in which it was stated that he along with Head Constable Lekh Raj, Selection Grade Constable Yash Paul and Constable Maggar Singh in departmental vehicle driven by driver Selection Grade Ct. Ganesh Dass, was on patrolling duty within the jurisdiction of Police Station, Hiranagar and when they reached near Railway bridge at Dyala Chak at about 18:15 hours, one person was going towards Dinga Amb from Dyala Chak carrying one bag on his shoulder. On seeing Police party, he tried to hide himself. However, he was caught and on enquiry he disclosed his name as Dilbagh Singh S/o Baldev Singh R/o Katli, Tehsil Dinga Amb and during the search of his bag, 500 grams of Heroin (Chitta) like substance was recovered from him. Pursuant to this docket, FIR bearing No. 114/2020 under Section 8/21/22NDPS Act was registered in the Police Station and during the course of investigation, the Investigating Officer prepared a site plan of place of occurrence, got the photography conducted of the spot, seized heroin like substance from the possession of accused Dilbagh Singh and weighed the same with the help of an electronic weighing machine and out of the 500 grams of heroin like substance, 5 grams of substance was extracted and marked as “A” for chemical analysis and remaining contraband was marked as “B” . Thereafter, the sample “A” was resealed from EMIC Hiranagar and was sent to the FSL, Jammu for chemical analysis.

8. Investigating Officer also obtained the call detail report and recorded the statements of witnesses under Section 161 Cr.P.C. As during the investigation, the accused Dilbagh Singh did not cooperate so he was sent to Joint Interrogation Centre, Jammu for sustained questioning. During interrogation by the team of JIC, he disclosed the names of two suspects namely, Ashraf Hussain S/o Abdul Gani R/o Chaka Bhaderwah, District Doda and other Wazir Chand S/o Nand Lal R/o Sankhja, Tehsil Bhaderwah District Doda. During th