HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Bail Appl. 53/2022

Union Territory of J&K

…Petitioner(s)

Through: Mr. Sheikh Feroz,Dy.AG vice

Mr. Illyas Nazir Laway, GA.

Vs.

Irfan Ahmad Gazi

…Respondent(s)

Through: Mr. Hussain Rashid, Advocate.

CORAM: HON’BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE

JUDGMENT

1. Petitioner, through the medium of this application, seeks

cancellation of bail granted to the respondent herein vide impugned

order dated 18.02.2022 passed by learned Additional Sessions Judge

Sopore in the case titled “Irfan Ahmad Gazi Vs. UT of J&K”

arising out of an FIR No.276/2021 for the commission of offence

punishable under Sections 8/21/22/29 of NDPS Act registered at

Police Station Sopore.

2. The impugned order has been assailed mainly on the ground that the

commercial quantity of drugs including brown-sugar had been

recovered from the possession of the respondent on 16.11.2021 at

Shalpora Sopore, and that the respondent was a habitual offender

already involved in a case of drugs registered vide FIR No.74/2012

regarding which he has been facing trial before the court below. That

the respondent, in view of the application of rigor of Section 37(I)(b)

of NDPS Act, there being no compelling reason to grant interim bail

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to the respondent was not entitled to grant of bail, on the pretext of

some pregnancy related complicacy of his wife. That the case, in

which the respondent had been granted interim bail, was still under

investigation. It was alleged that the court below had granted interim

bail in favour of the respondent without there being any cogent

reasons therefor, and it is prayed that the impugned order, whereby

the interim bail had been granted to the respondent, be set aside to

meet the ends of equity, law and justice.

3. Learned counsel for the respondent, pursuant to notice, appeared in

the court on 02.06.2022 and was directed to file reply before next

date of hearing, however, no reply has been filed and the learned

counsel for the respondent today submitted that instead of filing

reply he would prefer to argue the matter.

4. Heard and considered.

5. Learned counsel appearing for the petitioner-Union Territory, argued

that the respondent, who is a habitual offender involved in the illicit

trafficking of drugs, had been granted interim bail by the court below

on the pretext of some pregnancy related complications of his wife,

though the respondent was not entitled to be granted bail in view of

the commercial quantity of drugs having recovered from his

possession in view of the application of rigour of Section 37 of

NDPS Act. He further submitted that the case was still under

investigation and grant of bail, even if interim in favour of the

respondent, was detrimental to the fair investigation of the case. It

was submitted that the court below had committed grave illegality

while granting interim bail to the respondent. He further argued that

the court below vide order dated 18.02.2022 had granted interim bail

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to the respondent for a period of three months and the same was

being extended from time to time without asking the respondent to

surrender to the judicial custody. It was finally prayed that the

impugned order be set aside in the interests of justice.

6. Learned counsel for the respondent, ex-adverso, argued that the

respondent had been granted interim bail not on merits but bail was

granted to him in view of the reason that the respondent’s wife, who

had been carrying pregnancy of 29 weeks had developed some

serious complications including “Retro Placental Hemotoma” and

that there is no male person except the respondent to look after her in

her advanced stage of pregnancy, as such, the court below had not

committed any illegality while granting interim bail. The interim

bail, in view