Srinagar: High Court of J&K and Ladakh on Tuesday declined to grant bail to a drug peddler who was booked under Narcotic Drugs and Psychotropic Substances (NDPS) Act after police allegedly recovered from his possession a commercial quantity of contraband in 2020.
Dismissing the bail plea of one Umer Gul Bhat , a bench of Justice Sanjay Dhar said “The bar to grant of bail as contained under Section 37 of the NDPS Act gets attracted to the case of the petitioner with full force. The plea of the petitioner for grant of bail on merits is, therefore, without any force”.
Besides other grounds, the petitioner had sought bail on the ground that the “recovered contraband falls within intermediate category, as such; rigor of Section 37 of the NDPS Act does not apply to his case.”
The government through its counsel Usman Gani had opposed the bail plea on the ground that petitioner is involved in an offence which is against society and if enlarged on bail, it will be prejudicial to the future of the young generation which is already reeling under the menace of drug trafficking. “If petitioner is admitted to bail, there is every apprehension that he will indulge in similar activities” it said.
With regard to the contention of the petitioner that the quantity of contraband allegedly recovered from his possession falls in the category of intermediate quantity, the court said: “ The assertion of petitioner is factually incorrect, inasmuch as petitioner has been found in possession of 720 capsules, with each capsule containing at least 400 mg of mixture of different chemicals, in which one of the chemicals is Tramadol Hydrochloride, which is a substance falling under the category of psychotropic substances in terms of Notification No.S.O. 1761(E) dated 26.04.2018 issued by the Central Government”.
“Even though the weight of Tramadol in 720 capsules recovered from the petitioner may come out less than 250 grams which is categorized as commercial quantity, yet it is the total weight of the capsules which is to be considered. In this regard, reference is made to the Notification No.S.O.2942(E) dated 18.11.2009 and Notification No.S.O.1055(E) dated 19.10.2021 issued by the Central Government,” it said.
Citing Supreme Court judgment in the case of Hira Singh and Ors Vs Union of India and Ors, the court said the apex court has upheld the validity of the notification as it has held that “in the mixture of narcotic drugs or psychotropic substances with one or more neutral substances, the quantity of neutral substances is not to be excluded, rather it is to be taken into consideration along with actual content by weight of the offending drug”.
“It can safely be stated that a commercial quantity of psychotropic substance is alleged to have been recovered from the possession of the petitioner. Thus, rigor of Section 37 of the NDPS Act is attracted to the instant case with full force", the court said. With regard to the petitioners contention that even if rigor of Section 37 of NDPS Act is attracted to his case, still then he deserves to be enlarged on bail on merits, the court said “ It is clear that in the cases in which commercial quantity of contraband is alleged to have been recovered from the accused, bail can be granted only if there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail”.
Citing a Supreme Court judgment, the court said:“unless it is shown from the material on record, which would include the statements of the witnesses recorded by the prosecution before the trial court in support of its case, that there are reasonable grounds to justify the satisfaction that the accused is not guilty of the alleged offences, the accused cannot be enlarged on bail”
With regard to the contention that that most of the material witnesses to the seizure and recovery of contraband from the possession of the accused have given inconsistent and contradictory versions of the occurrence, the court said: “It needs to be borne in mind that while deciding a bail application, this Court is not required to appreciate and scrutinize the evidence in detail at this stage. “A meticulous and critical analysis of the evidence by the prosecution at this stage is not permissible” it said
Dismissing the bail application, the court however directed the authorities concerned to conduct thorough medical checkup of the petitioner and in case he required specialised treatment, he shall be provided to him.