1. Through the medium of instant bail application, petitioner namely Mohd. Sharief seeks grant of bail in FIR No.180/2018 dated 10.08.2018 under
Section 8/21/22 of NDPS Act registered with Police Station Gandhi Nagar, Jammu.
2. In the bail application, it has been averred that the respondent has registered FIR No.180/2018 under section 8/21/22 NDPS Act against the
petitioner and petitioner is in custody of police for last more than 45 days. It is stated that petitioner had also filed an application for grant of bail before
the Court of learned Additional Sessions Judge, Jammu, and the same was dismissed vide order dated 18.09.2018 on the ground that the accused has
failed to make out a case for grant of bail since the investigation of the case is not complete and the challan against the accused has not been
produced in the Court. It is further stated that the alleged contraband seized is in intermediate quantity, as such, the petitioner deserves bail. The
petitioner is the sole bread earner of his family and the family members are solely dependent upon the income of the petitioner.
3. It has also been stated in the application that the petitioner is an innocent person having no connection with the alleged offences as mentioned in the
FIR and in case the petitioner is not released, the future of the petitioner as well as his family will be spoiled, because it will cause adverse effect on
the upbringing and welfare of the minor kids of the petitioner and further detention of the petitioner may cause harm to the life and future of the
petitioner as well. The petitioner undertakes to abide by all terms and conditions as imposed by the Court while admitting the petitioner on bail. Lastly,
petitioner has prayed for grant of bail.
4. Objections stand filed on behalf of respondent-State stating therein that on 10.08.2018, the petitioner, who was coming from Bikram Chowk
towards Satwari, when reached at Chattri Chowk on seeing police party tried to escape in suspicious circumstances but the alert patrolling party
chased/caught hold of him and on following the procedure as prescribed under NDPS Act, on checking found him in possession of 110 grams of
Heroin. The FIR No.180/2018 stands registered with Police Station Gandhi Nagar, in this regard and after due investigation, the challan stands
presented against the accused-petitioner. The proceedings are at initial stage and if the accused-petitioner is admitted to bail, the accused/petitioner
may make an attempt to monitor the witnesses. It is further stated that the accused-petitioner had earlier also moved the bail application before trial
Court which was dismissed on 18.09.2018. That the present bail application is otherwise also not maintainable as has not been filed by the accused
himself. It is also stated that the accused-petitioner is a habitual offender, who is involved in a heinous offence against the society so rigorous of
NDPS do apply. In the event accused-petitioner is released on bail, there is every likelihood that he will run away from the prosecution. With these
submissions, learned State counsel has prayed for dismissal of the instant bail application out rightly.
5. In support of his contention, that curtailment of liberty is reasonable and second bail application is not maintainable when there is no change in
circumstances so as to persuade Court to exercise discretion in favour of accused, learned State counsel has relied upon decision rendered by this
Court in case titled Khaja Shahid Farooq & anr. Vs. State of J&K and anr., reported in 2012 (2) JKJ 99.
6. Heard learned counsel for both sides and gone through the law on the subject. Learned counsel for the petitioner has reiterated the grounds taken in
the application whereas State counsel has opposed the bail application tooth and nails.
7. It is pertinent to mention here that the petitioner had earlier also filed bail application before learned Additional Sessions Judge, Jammu, which came
to be dismissed vide order dated 18.09.2018. There is yet another bail application moved by the petitioner, which came to be dismissed by the trial
Court on 04.10.2018, observing that though the quantity of contraband recovered from the possession of accused is not commercial so as to attract
rigors contained under Section 37 of NDPS Act, but at the same time, it is to be borne in mind that the charge sheet has just been laid before the
Court and even charge has not been framed against the accused so far. However, liberty was granted to the petitioner to make a fresh motion at the
relevant stage i.e. with the change of circumstances including framing of charge and recording of atleast some direct evidence.
8. From the perusal of file, it appears that the allegations against the petitioner are that on 10.08.2018, the petitioner, who was coming from Bikram
Chowk towards Satwari, when reached at Chattri Chowk on seeing police party tried to escape in suspicious circumstances but the alert patrolling
party chased/caught hold of him and on following the procedure as prescribed under NDPS Act, on checking found him in possession of 110 grams of
Heroin. The FIR No.180/2018 stands registered with Police Station Gandhi Nagar, in this regard and after due investigation, the challan stands
presented against the accused-petitioner. The proceedings are at initial stage. The earlier bail applications moved by the petitioner before trial Court
already stands dismissed. From the perusal of certified copy of interim order dated 19.10.2018, it reveals that charge has already been framed against
the petitioner.
9. Section 37 reads as under:-
―[37. Offences to be cognizable and non-bail able;- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving
commercial quantity] shall be released on bail or on his own bond unless-
(i) the public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of
such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in force, on granting of bail,].ǁ
10. From the perusal of this Section, it is manifest clear that this section is applicable for offences under section 19 or section 24 or section 27A only
when commercial quantity of Narcotics Drug or Psychotropic Substance is found from the possession of accused. In term of section 37 of NDPS
Act, no person shall be released on bail, who is found in possession of commercial quantity of Narcotic and Psychotropic substance unless the
prosecution is given opportunity to oppose the bail application and Court finds that accused is not, prima facie, involved in the offence. These
restrictions are in addition to restrictions imposed under section 497 Cr.P.C. In the present case accused has been found in possession of 110 gms of
Heroin. The accused has, thus, been found in possession of quantity, which is in between commercial and small quantity. In this way rigour of section
37 of Act is not applicable.
11. In 2008 (3) JKJ 410 (HC), in case, titled, Tariq Ahmad Dar and another Vs. State and others, the High Court of J&K, has held as under:
―Criminal Procedure Code, Svt. 1989, Section 497 & 498----Narcotic Drugs---Section 37--Bailâ€"Jurisdiction of High Court---Held, the Powers are
concurrent, it does not mean that once plea of bail is rejected by Sessions Court, the High Court cannot exercise the powersâ€" Accused are in the jail
for the last more than ten months-- Detention or custody can be by way of Punishmentâ€"In criminal jurisprudence the accused is presumed to be
innocent until guilt is brought out---Accused deserves to be admitted on bail. Rel. on AIR 1978 SC 1979.
The relevant Para of the judgment reads as under:
―2. Earlier Section-37 of the NDPS Act took into its sweep all offences punishable under the Act, but now pursuant to amendment operation of
Section â€"37 of the Act has been limited in its operation only to such offences which are punishable under section-19, Section-24, Section-27 (A) and
all offences involving commercial quantity of the Narcotics. The fetters imposed by Section â€"37 of the Act are applicable only under said position of
the case. If the case does not fall within the scope of Section-37, then grantor refusal of the bail has to be considered under Section-497 of the
Cr.P.C.ǁ
12. The general law of bail shall apply in present case. Every person is presumed to be innocent unless his guilt is proved beyond reasonable doubt.
Section 497 Cr.P.C. empowers the Court to consider the bail. As per section 497 Cr.P.C. a person who has committed offence punishable with death
or life imprisonment cannot be granted bail, if there appears that there are reasonable ground for believing that accused applicant has committed such
type of offence. In the present case accused-applicant has been found in possession of contraband, which is in between commercial quantity and
small quantity and punishment for this offence is up to 10 years and a fine of Rs.one lac. In this way, rigour of Section 497 Cr.P.C is also not
applicable.
13. Petitioner is in custody and trial is proceeding. He cannot be kept in custody as a matter of punishment. Further, he is not a habitual offender as no
previous criminal history of accused has been disclosed by Police. Every person is presumed to be innocent until the accusation is proved against
him/her. Bail is rule and its refusal has to be in exceptional circumstances. Prosecution has not been able to show any material warranting denial of
such concession to the applicants.
14. The petitioner is, thus, admitted to bail, subject to furnishing of his surety and personal bonds in the sum of Rs.50,000/- each to the satisfaction of
Court concerned on the following terms and conditions:-
a) That he shall actively participate in the trial.
b) That he shall not leave territorial jurisdiction of the State without taking prior permission of trial Court and shall refrain from intimidating prosecution
witnesses.
15. Bail Application is disposed of accordingly.
