SHER SINGH ALIAS SHERA Vs. STATE OF J&K

JUDGEMENT

(1.) Consequent upon the filing of appeal to impugn the correctness of the judgment and order dated 27.08.2004, propounded by the learned Sessions Judge, Jammu, whereby the appellant-petitioner, Sher Singh, has been sentenced to undergo rigorous imprisonment for a term often years and to pay a fine of Rs. 1.00 lac in proof of offence under section 21 of NDPS Act and in default of payment of fine, to suffer one year's imprisonment, an application has also been preferred for the release of the convict on bail. It is urged that the petitioner-appellant is an innocent person and has not committed any offence. He has also undergone a long period in judicial custody during the currency of the trial and thus could not manage a proper legal assistance to defend his case. He has old aged parents with no body at home to look after the family and that the petitioner-appellant has been falsely implicated in the case and his search and seizure has been manipulated for the sole purposes of his implication in the case of Narcotics.

(2.) Despite notice, the State did not choose to file objections and offered to advance the arguments. Heard learned counsel appearing for the parties and considered the rival contentions in context with the material on record and the relevant provisions of law.

(3.) Mr. B. B. Kotwal, learned counsel appearing for the petitioner-appellant, submits that the provisions of Sections 41 and 58 of the NDPS Act (hereinafter referred to as the Act.) would be applicable right from the investigation. It would be fallacious and pernicious to leave such question to be looked into during trial and not at the stage of bail application. According to Mr. Kotwal, the Act provides for its own machinery for investigation and the Act makes the provision with regard to arrest, search and seizure and also provides safe guards to the accused, which if ignored, would bring into peril the liberty of the citizen guaranteed under Article 21 of the Constitution. His further submission is that the petitioner-appellant is entitled to rely upon such formalities even at the stage of bail.