REHMATULLAH Vs. U.T OF J&K

JUDGEMENT

(1.) Instant bail application has been moved by applicant/accused through his counsel for his enlargement on bail on the grounds, that applicant is a bona-fide citizen of the country entitled to all the constitutional and legal rights; applicant has been arrested by police station Doda on 3/12/2021 in an absolutely false and frivolous case in FIR No. 208/2021 u/ss 8/15 NDPS Act on the basis of a concocted story that 1 ½ kg of Bhukki (Poppy straw) has been recovered from his possession; applicant is innocent, has not committed any offence nor violated any law of the land; the quantity of alleged contraband recovered from the possession of applicant is below the commercial quantity and little more than small quantity as such rigor of sec. 37 of NDPS Act does not apply; applicant filed an application for grant of bail in the court of Addl. Session Judge Doda which was dismissed on 17/12/2021 on the ground of gravity of offence and its impact on the society; applicant is a poor person and is dependent upon his daily earned wages, has to support himself and his family as he is the sole bread earner of the family; the object of bail is to secure the attendance of accused at trial by reasonable amount of bail; deprivation of personal liberty must be considered as a punishment which can only be inflicted after the trial and if the accused is found guilty; applicant is ready to abide by all the terms and conditions imposed by the court if enlarged on bail.

(2.) Respondent through it's counsel by filling objections has opposed the bail on the grounds, that from the possession of accused contraband poppy straw weighing 1 kg 900 grams has been recovered on 3/12/2021 by police station Doda and consequently FIR 208/2021 u/s 8/15 NDPS Act stood registered; there is no material before the court to believe that accused is not involved in commission of offence; FSL report confirms that contraband recovered from accused is morphine; all the rigors of NDPS Act are applicable; negation of bail is a rule and grant is an exception; accused belongs to organized group operating in the manner to destroy the social fiber of the society and spoil the younger generation by the manse of drugs; curtailment of liberty of such a person has time and again held by the Hon'ble courts as justified; the trial court has passed a detailed order and considered all the aspects while rejecting the bail application of the accused; bail in NDPS Act is an exception and not a rule, prayer has been made for rejection of the bail.

(3.) Heard and considered. From the objections filed by the respondent, it is abundantly clear, that the applicant/accused has been found in possession of 1 kg and 900 grams of poppy straw (Bhukki) on 3/12/2021 by police station Doda. Serial No. 110 of the Table appended to the NDPS Act depicts that 1 kg (1000 grams) of poppy straw is "small quantity" while 50 kg of poppy straw is "commercial quantity". As mandated u/s 37 of NDPS Act, a rigor is imposed and bail to the accused in commercial quantity can only be granted, (i) when the Public Prosecutor is given an opportunity to oppose the bail, and (ii) the court is satisfied that the accused is not guilty of offence and is not likely to commit any offence on bail. As the applicant/accused in the case in hand is found in possession of "intermediate quantity" of poppy straw of 1 kg and 900 grams, therefore, rigor contained in sec. 37 of NDPS Act does not apply to the case in hand, and the bail application of applicant/accused is to be governed by the provisions of sec. 497 (437) Cr.pc.