NOOR UD DIN Vs. SUPERINTENDENT OF CUSTOMS

JUDGEMENT

(1.) One Noor-ud-Din a young student of M.Com was arrested by and at the instance of respondent of 24th August, 1989 on the ground of being in possession of heroin weighing one kilogram valuing at rupees one crore in the International market from Satwari, a suburb of Jammu City. His prayer for the grant of bail was resisted by the Superintendent of Customs Preventive station, R.S. Pura on the ground of his being involved in the commission of a henious crime under the Narcotic Drugs and Psychotropic Substance Act. It was submitted that the accused had made a confessional statement of being in possession of the heroin at the time he was arrested. Recovery seizure memo is alleged to have been prepared on the spot. The accused is further alleged to have disclosed the names of Ghulam Hussain alias Billa son of Shukar Din who had given him the said contraband and was dealing in Narcotic Substance since long. It was claimed that the house of the said Billa was raised but he was found to be absconding. It was submitted that if bail was granted to the accused it would become difficult for the department to catch hold of the main drug trafficker namely, Billa. As the accused was allegedly involved in a henious crime affecting the economy and the society, he was termed to be a murderer of Nation and not entitled to bail.

(2.) Bail application of the accused which was vehemently opposed by the Superintendent Customs, R.S. Pura was dismissed by the city Magistrate, Jammu and in reply to the bail application filed in this court. It was submitted in the objections filed on 16-11-1989 that as the petitioner-accused was guilty of the commission of offence under the Narcotic Drugs and Psychotrnpic substance Act, he was not entitled to the grant of bail. It was further submitted that, no discretion under Section 498 of the Criminal Procedure Code should be exercised in favour of the petitioner as, irrespective of the quantum of punishment provided for the offence with which he has been charged, the offence is of a henious nature, as such offences adversely affect not only the economy of the nation but its health also. It is a common place knowledge that there is an international drive against such offenders who deal in such like poisonous drugs or substances. Such offenders hardly deserve any indulgence or leniency at the hands of Court of law. During the pendency of the bail application in this court it was pointed out that seized article have been found to be not heroine after chemical analysis. The Customs Department denied the correctness of the report thereafter it was directed that Sh. S.C. John the Chemical Examiner be directed to appear before him and the record of the test pertaining to the test conducted by him, As the report of the chemical examiner was alleged to be not properly stamped and diarised, it was directed that the sample be sent to Regional Research Lab. to find out as to whether the contents of the packet contained the heroin or not. The Chairman of the Industrial Survey section of the Regional Research Lab. Vide his letter date 11-12- 1989 expressed his regret to inform that the facilities for testing heroin were not available in the Laboratory. Shri S.C. John however appeared in the court on 14-12-1989 and stated that the sample sent by the Superintendent Customs Preventive R.S. Pura Jammu was examined by him and after test. I came to the conclusion that the sample was of Boric Acid in the form of white powder and not Diacetyl Morphine, The counsel for the parties were afforded time to cross- exam me the witness which they declined.

(3.) In view of the statement of the chemical examiner Narcotic, central Revenues Control Laboratory, the accused was granted bail and a notice was issued to the Superintendent of Customs R. S. Pora to show cause as to why he should compensate the petitioner-accused with damages to be paid by him personally.