JASVINDER KUMAR Vs. STATE OF J & K

JUDGEMENT

(1.) Through the present bail application, Petitioner-Jasvinder Kumar seeks bail, inter alia, on the ground that he has been falsely implicated in a criminal case in FIR No.45/2015 dated 11.03.2015 registered at Police Station Nowabad under Section 8/21/24/29/31 NDPS Act.

(2.) It is stated in the application that after the completion of investigation charge-sheet was submitted in the Court of law by the concerned investigation agency against four accused persons including the petitioner and three others namely Ved Parkash, Mohd Farooq and Sandeep Kumar. The learned Sessions Judge, Jammu transferred the case to the Court of learned Additional Sessions Jammu and the same is pending trial. It is further stated that the trial Court framed the charge sheet against the applicant/accused person under Sections 8/21/24/29/31 of NDPS Act on 29.09.2015 and the case was fixed for recording statement of prosecution witnesses on 16.10.2015. The matter has been adjourned many times for recording of the prosecution evidence; two important prosecution witnesses namely Jamil Singh PW-2 and Sub-Inspector Ajay Angotra PW-1 were summoned along with some other formal prosecution witnesses. A bare perusal of the interim orders would reveal the conduct of these two witnesses for avoiding to appear in the Court for further prosecution examination interestingly both the witnesses when claimed to be present at the alleged place of Naka were asked by the defence to produce the respective Roznamcha, it is after that the two official witnesses kept on avoiding to appear before the Court on one or other pretext even though the trial Court issued warrant against them both bailable and non-bailable at several occasions. It is further contended that the petitioner herein who has been shown to have been arrested on 11.03.2015 along with other co-accused, was in fact illegally taken into custody by a team of SOG which was headed by PW-1 Ajay Angotra Sub Inspector who was at that time posted in SOG Jammu while the petitioner was driving a scooter near Shastri Nagar, Jammu, he was carrying a cash of Rs.5,50,000/- with him which he had taken as a sale consideration for his land which he has sold on the same day to one Amar Singh S/o Late Sh. Chela Ram R/o Swankha Morh, Channi Manhasan, Tehsil Vijaypur, District Samba. It is further stated that immediately after the arrest of petitioner, his brother namely Rajinder Kumar filed an application for release of Scooter, which was also taken away by the SOG party, who had illegally arrested the petitioner during the course of the adjudication upon the application, the Chief Judicial Magistrate, Jammu deem fit to initiate an inquiry into the matter and accordingly examined the independent witnesses which established the factum of petitioner having been taken illegal into the custody by the said SOG team on 09.03.2015. It is further contended that the petitioner infact was taken into illegal custody by the SOG team headed by PW_1 Ajay Angotra Sub-Inspector and was subsequently falsely implicated in the present case along with other three co-accused, interestingly the same Ajay Angotra Sub-Inspector has been projected as an ASS witnesses by the prosecution in the instant case. The petitioner declares with all humiliation at his command that no such Naka as shown in the case to have been laid on 11.03.2015 was ever in fact not laid. During the course of Cross examination these two witnesses namely Jamail Singh and Ajay Angotra PW, the cross examination contradicted their own case on material aspects and when were confronted with their claim of being on the alleged Naka and recovering the contraband, so alleged now they have been continuously avoiding to appear before the trial Court with the respective Roznamcha to prove their departure to and their returned from the alleged Naka. Both the prosecution witnesses especially Ajay Kumar Angotra PW-1 seemingly happens to be the story teller of the false case. It is further contended that the petitioner has not committed any offence muchless than the offence he is charged for, he is innocent and has falsely implicated in the instant case alongwith other co-accused. An application for grant of Bail under Section 498 CrPC read with Section 37 of NDPS Act was filed before the Trial Court, which has been rejected on 02.12.2016. The Trial Court is not correct in holding that there was any delay in the trial attributable to the defence. The Trial Court apparently seems to have reached the conclusion merely on the ground of false less allegation levelled in the charge sheet that the petitioner has been convicted and involved in many cases. The FIRs relied upon by the investigating agency do not pertain to the petitioner and the Trial Court has failed to appreciate this aspect of the case. It is further stated that no once dispute the stringent nature of the law pertaining to involvement under the provisions of NDPS Act at the same time a sight cannot be lost of the fact this law can more easily be misused as has been done in the instant case. All the prosecution witnesses in this case are Police official, and despite the claim of having conducted a Naka on the highway, surprisingly, no independent witness has been associated to Jamail Singh and Ajay Angotra PWs-1 and 2 have admitted the availability of independent witnesses on the alleged place of occurrence in fact the most strong reason to concocted and fabricated such cases has recently been noticed in the Police Officer to claim the reward which is paid by the Narcotic Department against the alleged prize of the contraband and in the instant case these Police Officer, who are both prosecution witness and architect of the case have claimed the award and the document forms part of the challan. It is therefore prayed that the applicant may kindly be admitted on bail.

(3.) In response to the application, Mr. S.S. Nanda, learned Sr. AAG, has filed the objections wherein it is stated that the above titled bail application is not maintainable and deserves to be dismissed as being premature and without substantial change of the circumstance between the earlier application filed by the petitioner before the court of Learned Additional Sessions Judge, Jammu which has been rejected on 02.12.2016 and the present application filed before this Court, as such, the present application for bail is not maintainable and deserves to be dismissed. The Hon'ble Supreme Court has laid down preposition of law regarding successive bail applications that an accused has a right to make subsequent applications for grant of bail, but the court entertaining such subsequent bail applications has a duty to consider the reasons and ground on which the earlier bail applications were rejected and in such cases, the court has also a duty to record what are the fresh grounds which persuade the court to take a view different from the one taken in the earlier applications. The accused persons including the petitioner having deliberately and intentionally committed very heinous offence under Sections 8/21/24/29/31 of NDPS Act, as such, the accused-petitioner is not entitled to bail at this stage especially when he alleged to have been found in possession of large quantity of "Heroin". It is also stated that the Court cannot afford to lost sight of the fact that the offence under the Act (NDPS Act) are of serious menace to the society at large, free and unbridled possession and use of such narcotic drugs which, of late, have assumed a very dangerous proportion in social life which are sought to be controlled under the NDPS Act are found in large circulation in society thus impairing the very health and orderly living in society, besides having a deleterious effect on the national economy, and hence the invites a harsh punishment. Since there is also reasonable apprehension that in case the concession of bail is extended to the petitioner at this stage, he may abuse the liberty to subvert justice and threaten the prosecution witnesses, as such, the instant bail petition is required to be rejected out rightly. It is therefore prayed that the bail application of the petitioner may kindly be dismissed.