HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Bail App No. 408/2021

CRM (M) No. 8242021

Reserved on : 08.04.2022

Pronounced on : 21.04.2022

Raj Kumar

…. Petitioner(s)

Through :- Jagpal Singh, Advocate

V/s

UT of J & K

….Respondent(s)

Through :- Mr. Deewakar Sharma Dy. AG

Coram:

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

O R D E R

21.04 .2022

1. Applicant has sought regular bail in FIR No. 120/2020 of Police Station

Rajbagh Kathua for commission of offences contrary to sections 8/15/29

of Narcotics Drugs Psychotropic Substance Act 1985 (for short the

NDPS Act). It is averred, that applicant is a citizen of India and

permanent resident of U.T. of J&K and is entitled to protection of all

legal statutory and constitutional rights guaranteed to him by the

constitution of India; that he has been implicated in false and frivolous

case which has culminated in the production of challan which is pending

disposal before the court of Ld. Sessions Judge Kathua titled State of

J&K v/s Mohd Ashraf and Anr; that the applicant preferred bail

application before the trial court but the same was rejected by the trial

court’s order dated 15-11-2021 on the grounds that quantity of alleged

poppy straw recovered falls under commercial quantity; that the challan

makes it amply clear, that only 2.66 kg of alleged poppy straw was

recovered from the possession of applicant after his arrest on 26-08-2020

which is smaller quantity; that the trial court of Ld. Addl. Sessions Judge

Kathua was not right in holding that alleged contraband falls in the

category of commercial quantity; that the applicant is in custody for

more that 1 year in District Jail Kathua despite the fact that intermediate

quantity of contraband poppy straw has been recovered from his

possession; that the applicant undertakes to abide by all the terms and

conditions imposed by the court if enlarged on bail.

Sr. No. 116

2 Bail App No. 408/2021

2. Respondent No.1/U.T. of J&K through SHO Police Station Rajbagh

Kathua by filing objections/status report has opposed the bail on the

grounds, that on 28-06-2020 a special Naka duty was laid at NHW near

Police Station Rajbagh, at about 1630 hours one vehicle Tata Mobile

Pickup 207 bearing registration No. JK02AJ/9451 coming from Jammu

towards Lakhanpur was stopped for checking purpose, during checking

of the said vehicle 8 white colored plastic bags (toda) hidden under it

weighing 75/80 kg (10 kg each) poppy straw were recovered from driver

who disclose his name as Mohd Ashraf S/O Mohd Yousaf R/O Village

Jagti Kamini Tehsil Nagrota District Jammu (respondent No.2/accused),

on the tip of information during the course of investigation, on 06-08-

2020 applicant/accused was arrested for illegal trade of selling poppy

straw and after his arrest on 01-09-2020 he confessed to have hid poppy

straw in an abandoned toilet on the backside of his dhaba and on his

disclosure, 2.660 kg of poppy straw was recovered from him; in view of

the evidence collected, the challan of the case has been produced in the

court of law against applicant/accused and the respondent No.2.

3. Ld. Counsel for petitioner has strenuously argued, that on the naka laid by

police party at Rajbagh Kathua on 28-06-2020, 75/80 kgs of poppy straw of

commercial quantity was recovered from the possession of respondent

No.2/principal accused, while after a gap of about 2 months on 06-08-2020

from the possession of petitioner/accused 2.660 grams of poppy straw of

intermediate quantity was recovered, therefore, two accused persons have

been found in possession of the contraband poppy straw individually. It is

argued, that in view of the settle