RAJIT KUMAR CHOUDHARY Vs. UT OF J&K

JUDGEMENT

(1.) Petitioner/accused has sought regular bail in FIR No. 29/2017 of police station Gangyal Jammu for commission of offences contrary to Sec. 8/21/22 of Narcotic Drugs & Psychotropic Substance Act 1985 (for short the NDPS Act). It is averred, the trial of petitioner is pending before the court of Ld. 1st Addl. Session Judge Jammu where the petitioner moved bail application, but in a casual manner bail has been denied to petitioner/accused and the said bail order is suffering from vice of non-application of mind by the trial court which has dealt with the liberty of petitioner in a mechanical manner, the charge sheet against the petitioner contained 10 witnesses and the prosecution has examined all material witnesses, the prevailing circumstances make it almost unforeseeable to comprehend the conclusion of trial in the new feature, the long incarceration of the petitioner in jail is resulting in financial physical and mental torture to him as each and every hour is a nightmare from hell for the petitioner who is in custody since 2017 however co-accused Ashok Singh has already been granted bail. It is averred, that the allegations against petitioner are, that a docket was sent by ASI Mohd Din to police station Gangyal Jammu claiming therein that on 11/4/2017 one Auto was stopped by naka police party at Kunjwani bearing No. JK02AX5970 and from its search it was found that petitioner was carrying 125 bottles of Phensedyl (codeine) whereas another person Ashok Singh was carrying 174 bottles of Corex, this information led to the registration of FIR and production of challan against the petitioner and the co accused u/ss 8/21/22 of NDPS Act, the prosecution has failed to establish the spot of occurrence, seizure, recovery as well as conscious possession so for Sec. 35 of NDPS Act is concerned, the police witnesses too have failed to prove the offence and the initial burden which always remains on the prosecution has not been discharged by the investigating agency.

(2.) Despite number of opportunities afforded to respondent/U.T. objections have not been filed, therefore, vide this court order dtd. 28/3/2022 right to file objections was closed, hence, the bail application is being decided on merit.

(3.) Sh. Anmol Sharma L/C for petitioner/accused has sought enlargement of the accused on bail by vehemently projecting arguments, that on 11/4/2017 one Auto was stopped by naka police party at Kunjwani bearing No. JK02AX5970 and from its search it was found that petitioner was carrying 125 bottles of Phensedyl (codeine ) whereas another person Ashok Singh was carrying 174 bottles of Corex. It is argued, that even then petitioner/accused has right to be enlarged on bail, as the trial court may take long time to conclude the trial, right to life and personal liberty of accused is of paramount importance and accused is presumed to be innocent till guilt is proved against him, accused is languishing in jail for the last more than 5 years since his arrest on 11/4/2017. Reliance has been placed on (i) Iqbal Singh Versus State (decided by Delhi High Court on 31/7/2020), (ii) Lovedeep Nath Versus Union Territory of J&K & another, Bail Application No. 296/2021 decided by J&K High Court on 28/1/2022), (iii) [Bharat choudhary (Petitioner) versus Union of India (Respondent) [petition for special leave to appeal (CRL) No. 5703 of 2021 and Raja Chandrasekharan (Petitioner) Versus the Intelligence officer directorate of Revenue Intelligence (Respondent) (Petition for special leave to appeal (CRL) No. 8919 of 2021] & (iv) Hira Singh Versus Union of India 9 Criminal Appeal No. 722 of 2017 decided by Hon'ble Supreme Court on 22/4/2020).