HIGH COURT OF JAMMU AND KASHMIR

ATJAMMU

(Through Video Conference)

Reserved on : 13.07.2020

Pronounced on: 25.08.2020

Bail App. No. 48/2020

CrlM No. 377/2020

Liaqat Hussain and others

.....Applicant(s)

Through :- Mr. Mohd Yaseer Choudhary, Advocate

Petitioner No. 1

Mr. Syed Aaqib Mujtaba, Advocate and

Mr. Ashfaq Mir, Advocate for

Petitioner Nos. 2 and 3

(on Video Conference from residence)

V/s

Union Territory of J&K

.....Respondent(s)

Through :- Mr. Aseem Sawhney, Advocate

(on Video Conference from residence)

Coram:

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

(through Video Conference from High Court, Jammu)

Judgment

1.

The instant bail application has been filed by the applicants after

their application for grant of bail was rejected by the learned Additional

Sessions Judge, Jammu on 12.03.2020 (hereinafter referred to as <the trial

court=).

2.

The instant application has been filed on the ground that the

applicants are innocent persons and have been falsely implicated in FIR bearing

No. 201/2019 under Sections 8/21 and 29 Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short the NDPS Act) registered with Police Station,

Sr. No. 208

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Bail App. No. 48/2020

Bakshi Nagar, Jammu. The applicants have further stated that the alleged

contraband that has been recovered from the applicants is 40, 35 and 27 grams

of heroin respectively. The said contraband, even if taken as a whole, does not

fall within the category of commercial quantity and rather the same falls within

category of the intermediate quantity. The applicants have further stated that

they have been in custody ever since their arrest on 03.12.2019 and the charges

have been framed on 27.01.2020. It is also stated that the rigor of Section 37 of

the Act does not apply in the case in hand.

3.

The respondent-Union Territory has filed the objections and

preliminary objections have been raised by the respondent that the present

application is not maintainable for the reasons that to maintain a

subsequent/successive bail application, change of circumstance is required.

However, in the instant application, there is no change of circumstance rather

the applicants are trying their luck before this Court. It is further stated that the

applicants do not deserve to be enlarged on bail as they are drug peddlers.

4.

Learned counsels for the applicants argued that the applicants have

been in custody for more than eight months and that too virtually without trial

because the proceedings in the case are not being conducted because of

restrictions imposed due to COVID-19 pandemic and no witness has been

examined by the trial court till date. It is further submitted that FIR (supra) is

the only FIR against the applicants and the prosecution has not brought any fact

before this Court that the applicants are involved in any similar type of offences

earlier also.

5.

Per contra, Mr. Aseem Sawhney, learned AAG submits that the

successive/subsequent bail application is filed without change of circumstance,

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Bail App. No. 48/2020

as such, is not maintainable and the applicants being the drug peddlers are not

entitled to bail.

6.

Heard and considered.

7.

As per the prosecution, the applicants were arrested on 03.12.2019

at Naka Point near Pawan Ice Cream, Bakshi Nagar, Jammu. On that day, the

applicants were stopped and during checking, 27 grams of heroin was found

from applicant No. 3, 40 grams from applicant No. 2 and 35 grams from

applicant No. 1 as such FIR bearing No. 201/2019 (supra) stands registered

against the applicants under Sections 8/21/22/29 of the NDPS Act. It is evident

that the applicants were arr