Sr. No. 39 Suppl. Cause List. 2 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No. 744/2024 CrlM No. 1712/2024 Lakshay Goyal …Petitioner(s)/Appellant(s)

Through: Mr. S. N. Ratanpuri, Adv.

Vs.

Union Territory Th. Police Station Ganderbal ...Respondent(s)

Through: Mr. Syed Musaib, Dy. AG CORAM:

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

O R D E R

02.01.2025

1. Through the medium of this petition, the petitioner has invoked the jurisdiction of this court under the provisions of Section 482 of CrPC challenging the vires of Section 306(4)(b) of the Code of Criminal Procedure and has sought a direction for release on bail in the case arising out of FIR No. 333/2023 registered with Police Station Ganderbal for offences punishable under Section 8 and 21 of the NDPS Act. The charge-sheet in respect of which charge has been framed is pending trial before the court of learned Additional Sessions Judge, Ganderbal.

2. After the presentation of this petition, learned counsel for the petitioner submits that he would restrict his relief in this petition only to the extent of grant of bail. He submits that he would not press this petition so far as relief regarding challenge to the vires of the provisions as contained in Section 306(4)(b) of CrPC.

3. The brief facts of this case are as follows:-

4. That an FIR No.333/2023 came to be registered with the Police Station, Ganderbal for the offences punishable under Section 8 and 21 of the NDPS Act against Feroz Ahmad Bhat S/o Habibullah Bhat R/o Bamloora, Ganderbal. In investigation, it was found that some other persons were also involved in the commission of the said offences Mohd Altaf Nima whose names were included in the FIR as accused and petitioner was one of the accused, so arrayed. While the investigation in the case was in progress, Investigating Officer made an application in respect of the petitioner under Section 306 CrPC and the learned Chief Judicial Magistrate accepted the said application vide its order dated 28^th May 2024 and tendered pardon to the petitioner subject to the conditions mentioned in the said order and it was one of the condition that he would stand by his statement during the course of investigation as well as during the trial of the case.

5. Police had filed charge-sheet and accused has been listed in the said charge sheet as approver and accused except the petitioner were charge sheeted and charge were accordingly framed against the said accused. The petitioner who was accused No. 7 had been granted pardon because he had turned to be approver, therefore, charge was not framed against him. The charge sheet had been presented by the police before the trial court and is pending before the Additional Sessions Judge, Ganderbal. Charges have been framed by the trial court against the accused except the petitioner who is accused No. 7. Statement of the petitioner as approver has also been recorded and in his statement, he has stood by the statement made by him at the time when he was granted pardon and statement was recorded before the Magistrate.

6. The petitioner who has stood as an approver made a statement in support of the prosecution approached the trial court for grant of bail, but his application for bail had been dismissed. The trial court in view of the provisions contained under Section 306(4)(b) did not grant the bail because as per the said provision, he has to remain in custody until termination of the trial. The petitioner submits that he has testified against the accused persons before the trial court. He submits that he has made a true and complete disclosure of all the facts and circumstances before the trial court and his further incarceration in custody is not warranted at all. He further submits that the provisions as contained in Section 306(4)(b) cannot be interpreted in such a manner to defeat the provisions of mandate as contained in Article 21 of the Constitution of India.

Mohd Altaf Nima

7. Mr. Syed Musaib, Dy. AG appearing for the re