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Judgment
Rajnesh Oswal, J
These two bail applications were heard together and are being disposed of, by this common judgment.
Both the husband and wife have filed the two separate bail applications bearing No. 73/2024 and 74/2024 respectively for grant of bail in FIR bearing No. 51/2024 dated 18.03.2024 for offences under sections 8, 21, 22 and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) registered with the Police Station, Doda. Both the petitioners had earlier filed the application for grant of bail but the learned Additional Sessions Judge, Doda dismissed the bail application vide order dated 01.04.2024.
It is stated that a false and frivolous FIR has been registered against the petitioner-Junaid Qayoom on the ground that 26.86 grams of Heroin was recovered from his personal search and similarly, the petitioner-Shafia Tabassum i.e. wife of petitioner-Junaid Qayoom has been falsely implicated on the ground of recovery of 6.02 grams of Heroin. It is submitted by the petitioners that the rigors of section 37 of the NDPS Act are not attracted in the present case as the alleged contraband recovered from both the petitioners does not fall within the category of commercial quantity.
The respondents have filed the response in both the petitions separately but on identical grounds, thereby stating that on 18.03.2024 an information was received from reliable source at Police Station, Doda that one person, namely, Junaid Qayoom and his wife Shafia Tabassum were illegally selling Chitta (Heroine) near the streets of New Bus Stand, Doda and at that time, they were selling the same near their house at new Bus Stand, Doda. On receipt of this information, FIR No. 51/2024 for offences under sections 8, 21, 22 and 29 of the NDPS Act was registered and investigation was entrusted to PSI Roshan Lal, Police Station, Doda. During the course of investigation, the Investigating Officer along with SHO Police Station, Doda, ASI Mushtaq Ahmed, ASI Fazal Ullah, Lady Sg.Ct. Shafia Akhter and Lady Constable Yasmeena Begum and Crime Photographer Abdul Gafoor proceeded on spot. The accused on seeing the Police Party, tried to run away from the spot, but were apprehended by the Police Party in the lawn of their residence. The accused persons were served with notices under section 50 of the NDPS Act in respect of their personal search. Both the accused persons expressed their willingness to be searched before a gazetted officer. After the arrival of Dy.SP Headquarter Doda, Sh. Ajay Anand, during the personal search of petitioner-Junaid Qayoom, Heroin like substance was recovered from the left pocket of his olive color trouser and a small spoon & silver foil paper were also recovered from the side pocket of his trouser. Currency amounting to Rs. 41,100/- was also recovered. During the search of female accused, Heroin like substance was recovered wrapped in silver foil paper along with mobile phone and cash amounting to Rs. 4,360/-. The quantity of the contraband recovered from petitioner-Junaid Qayoom was found to be 26.86 grams of Heroin, whereas the quantity of contraband allegedly recovered from the female accused was found to be 6.02 grams. The accused persons were arrested and the seized contraband was kept in malkhana. It is further stated that during the investigation, it came to the fore that the accused -Junaid Qayoom S/o. Abdul Qayoom, resident of near Bus Stand, Doda was accused in FIR No. 251/2022 for offences under sections 8, 21 and 22 of the NDPS Act of Police Station, Doda and FIR No. 100/2023 for offences under sections 8, 21 and 22 of the NDPS Act of Police Station, Bahu Fort, Jammu.
Learned counsel for the petitioners has vehemently argued that the quantities of the contraband allegedly recovered from the petitioners do not fall within the category of commercial quantity and as such, rigors of section 37 of the NDPS Act is not applicable, therefore they are entitled to bail.
On the contrary, Mr. Adarsh Bhagat, learned GA appearing for the respondents has vehemently argued that the petitioners are involved in selling the drugs and are destroying the lives of younger generation of the District Doda and as such, they do not deserve any concession of bail. He has further submitted that the petitioner-Junaid Qayoom is a habitual offender.
Heard and perused the record.
As per allegations leveled against the petitioners, the quantities of the contraband which were recovered from the petitioners do not fall within the category of commercial quantity. It is admitted by the respondents that the petitioners were arrested on 18.03.2024 meaning thereby that they are in custody for the last nearly two months. So far as the petitioner-Junaid Qayoom is concerned, he has been found to be involved in commission of similar type of offences two times earlier, as two FIRs stand already registered against him i.e. FIR No. 251/2022 for offences under sections 8, 21 and 22 of the NDPS Act of Police Station, Doda and FIR No. 100/2023 for offences under sections 8, 21 and 22 of Police Station, Bahu Fort, Jammu. The antecedents of the accused are also required to be considered, while deciding the application for grant of bail.
No doubt the quantity of the contraband recovered from the petitioner-Junaid Qayoom does not fall within the category of commercial quantity and rigors of section 37 of the NDPS Act are also not applicable but in view of his repeated involvement in the commission of similar type of offences time and again, this Court is of the considered view that the petitioner Junaid Qayoom does not deserve any concession of bail.
So far as the petitioner-Shafia Tabassum is concerned, there is nothing on record to demonstrate that she has in the past indulged in the commission of similar type of offences. She also has been in custody for the last nearly two months, as such, her presence may be required only during the course of trial. Therefore, this Court deems it proper to release the petitioner-Shafia Tabassum on bail.
In view of what has been said and discussed above, bail application filed by the petitioner-Junaid Qayoom is dismissed and the bail application filed by the petitioner-Shafia Tabassum is allowed. The petitioner-Shafia Tabassum shall be released on bail, subject to following conditions:
(i) That she will furnish bail bonds with two solvent sureties to the tune of Rs. 25,000/- each to the satisfaction of the Investigating Officer and personal bond of the like amount.
(ii) That she will appear before the Investigating Officer as and when required.
(iii) That she will not contact with any of the prosecution witnesses during the investigation either physically or through any other mode;
(iv) she will not leave the territory of the U. T. of J&K without prior permission of the I.O.
The respondents will be at liberty to seek cancellation of the bail of the petitioner- Shafia Tabassum, in case she violates the conditions imposed by this Court.
Bail App No. 73/2024 is dismissed and Bail App No. 74/2024 is allowed.