Mohammad Shafi Rather vs State Of J&K And Others

Rajnesh Oswal, J

Through the medium of this application, the petitioner is seeking bail in case FIR bearing No. 173/2019 registered with Police Station, Sumbal for commission of offences under sections 8, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short the NDPS Act). It is stated by the petitioner that as per the FIR, on 03.11.2019, he was arrested by the Police Party when he was trying to flee on Scooty from the naka and after efforts, he was arrested with another person namely, Jahangir Ahmed Rather and during frisking, two nylon bags were recovered from the petitioner and the other person and in those bags, Bung leaves like material weighing 17 Kgs was recovered. After conclusion of the investigation, challan stands filed by the Police and the same is sub-judice before the court of Principal Sessions Judge, Bandipora (hereinafter to be referred as the trial court). The petitioner has raised various grounds pertaining to the merits of the prosecution story in his application those need not be required to be considered by this Court while deciding bail application, as such, the same are not considered.

The petitioner had earlier moved bail application before the trial court but the same was rejected by the learned trial court vide order dated 04.07.2020.

The respondent has filed the objections, in which it has been stated that from the petitioner and the other accused person, 17 Kgs of contraband was recovered. It is further stated that the FSL report is also positive so far as the contraband is concerned and also that the petitioner is involved in a heinous crime, as such, he is not entitled to bail.

Learned counsel for the petitioner has vehemently argued that though initially 17 Kgs of contraband was allegedly recovered from the petitioner as well as from the other co-accused as per prosecution story, but subsequently the same has been stated to be 15 Kgs and not 17 Kgs that clearly shows that the prosecution story is false. He further placed reliance upon FSL report placed on record, in which it is stated that the contraband allegedly recovered has been identified as Ganja, plant material of cannabis. He further submits that the quantity of contraband allegedly recovered is between the small and the commercial quantity, so rigors of section 37 of the NDPS Act shall not apply.

On the contrary, Mr. Sheikh Feroz, learned Dy. A. G. has vehemently argued that the petitioner cannot claim bail as a matter of right as the petitioner is involved in a heinous offence, as such, he is not entitled to bail.

Heard and considered the rival contentions of the parties and perused the FSL report.

Though the learned trial court, while rejecting the bail application of the petitioner, has mentioned that the contraband that was recovered from the petitioner and the co-accused, falls within a commercial quantity but has failed to demonstrate as to what was the contraband that was recovered from both the accused. More so, the learned trial court has mentioned that 15 Kgs of contraband has been recovered from both the petitioner as well as co-accused.

Be that as it may, it is an admitted fact that the petitioner has been in custody since November, 2019 i.e. for the last more than one year and it is a well known fact that due to COVID-19 pandemic, the proceedings in the criminal trials have come to stand still. The petitioner cannot be kept in custody for an indefinite period. The allegations against the petitioner are, no doubt serious, but they are subject to proof during the trial. More so, rigors of section 37 of the NDPS Act are not applicable in the instant case. The FSL report is admitted by the parties and has been relied upon by the prosecution. It is evident that as per the Notification bearing No. SO 1055 (E) dated 19.10.2001, the commercial quantity of the Ganja has been prescribed as 20 Kgs, whereas the quantity of the Ganja allegedly recovered from both the accused persons including the petitioner is 15 Kgs that falls within the category intermediate quantity i.e. in between small and commercial quantity. So, in view of the quantity recovered, rigors of section 37 of the NDPS Act are not applicable in the case of the petitioner. The respondent has not placed anything on record to demonstrate that the petitionSer has been involved in commission of offences of similar nature in the past. As the challan stands filed so the presence of the petitioner is not required for the purpose of investigation but only during trial, for which the appropriate conditions can be imposed by this Court. This court is of the considered opinion that the petitioner has made out a case for grant of bail.

For all what has been discussed above, this application is allowed.

The petitioner is enlarged on bail on the following conditions:

(i) subject to furnishing of recognizance bond by surety to the tune of Rs. 50,000/- along with personal bond of the like amount to the satisfaction of the Trial Court.

(ii) he shall furnish an undertaking that he shall regularly attend the proceedings before the trial court.

(iii) he shall not leave the territorial jurisdiction of the Union Territory of J&K without the permission of the learned trial court.

(iv) he shall not contact with any of the prosecution witnesses during the trial.

In the event of violation of any of the conditions mentioned above, the respondent can lay a motion for cancellation of bail of the applicant before the trial court.

Disposed of accordingly.