MOHD RAFIQ Vs. STATE OF JAMMU & KASHMIR

JUDGEMENT

(1.) Through the medium of instant application, the petitioner/applicant inter alia seeks indulgence of this Court for grant of bail on the grounds that after the arrest of the petitioner/applicant on 4/1/2018, he was produced along with other accused before the Executive Magistrate, Jammu on 5/1/2018 for getting their first remand and the petitioner/applicant was on remand of the police till 3/7/2018; that the petitioner/applicant in this case was arrested on 4/1/2018 and from the period of his first remand i.e. 5/1/2018 till 3/7/2018, the period of 180 days as prescribed in Sec. 36-A (4) of the NDPS Act for producing the charge sheet had expired and the investigating agency failed to file the charge sheet before the competent court of law. It is further stated that as per the settled law, the period of detention which is required to be taken into consideration by the court for grant of bail under Sec. 167(2) CrPC is the period of the first remand of the petitioner/applicant and in the instant case the first remand was taken on 5/1/2018 and till 3/7/2018 the period of 180 days had expired; that the petitioner/applicant had moved an application before learned 2nd Additional Sessions Judge, Jammu for admitting him on bail, which was dismissed on 24/7/2018 on the ground of premature and that the charge sheet came to be filed on 4/7/2018 i.e., immediately after the expiry of the statutory period. It is further submitted that the learned trial court on the one hand has accepted the fact that the challan has been presented after the expiry of the statutory period but on the other hand has opined that even if the right accrued to the petitioner/applicant for consideration of compulsive bail, it stood lost because of filing of the charge sheet after the statutory period had expired before the prayer could be considered by the trial court; that the impugned order is self contradictory and the trial court has not at all appreciated the essence of Sec. 36-A (4) of the NDPS Act. The proviso to the said Sec. clearly emphasizes that if it is not possible to complete the investigation within the said period of 180 days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and specific reason for the detention of the accused beyond the said period of 180 days. While passing the impugned order, the learned trial court has placed heavy reliance on the case titled Sanjay Dutt vs State, reported in (1994) 5 SCC 410 and has not at all appreciated the latest judgment of the Supreme Court.

(2.) The State has filed the objections wherein it has been stated that the accused was caught with Afghan mark heroin; that from the accused persons as named in the Challan, which stands produced before the Court of learned 2nd Additional Sessions Judge, Jammu a commercial quantity of heroin was recovered; the accused along with other as named in the Challan arising out of FIR No.05/2018 Police Station Akhnoor, under Sec. 8/21/22/29 are facing trial before the learned 2nd Additional Sessions Judge, Jammu. The trial is at its initial stage. Hence, the rigorous of Sec. 37 of NDPS Act is applicable; that as per the NDPS Act, if there is a recovery of drug of commercial quantity, the bail under these offences involving a recovery of commercial quantity of Narcotic substance is as a rule denied and ground of bail is an exception. The accused was caught with the conscious possession of Narcotic drug along with other co-accused, hence stands challaned under offence 8/21/22/29 of NDPS Act, therefore, it is denied that the accused is a innocent person and has not committed any offence. It is further stated that the charge is pending before the learned 2nd Additional Sessions, Judge, Jammu. It is further stated that the concession of bail cannot be extended to the accused who is belonging to an organized group dealing with Narcotics and operating in a manner, which is destructive of special fiber spoiling the society particularly the young generation. There is no change of circumstances on the basis of which the present application has been filed. That the perusal of the charge sheet/challan, it is manifest that huge quantity of heroin Afghan made commercial quantity was recovered from the applicant/accused herein along with other co-accused person. It is, therefore, prayed that the bail application of the applicant/accused may kindly be dismissed.

(3.) I have heard learned counsel for the parties and have perused the case file.