Violation can be determined only during trial, not during proceedings: HC



JAMMU: Justice Sanjay Dhar of J&K High Court Jammu, while dismissing the bail application of a narco-smuggler, observed that violation of provisions can be determined only during trial of case and not in the proceedings. In the application filed by Khair Mohd Ahangar seeking bail in crime case No.07/2019 for offence under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act registered by Narcotics Control Bureau (NCB), Jammu. As per prosecution case, on December 21, 2019 Intelligence Officer of NCB received a secret information from reliable sources that petitioner is coming from Kashmir valley and carrying huge quantity of ‘Charas’. On receipt of this information, a team was constituted by the NCB and the team spotted the petitioner near Gumat Bazar at Samrat Hotel, Bus Stand, Jammu. The petitioner was stopped and on search, 5.050 Kg ‘Charas’ was recovered from his possession. Statement of petitioner under Section 67 of NDPS Act was recorded and he was taken into custody. After recording statement of petitioner, involvement of another accused namely Bashir Ahmed Ganie also surfaced and he was also taken into custody. It appeared that co-accused-Bashir Ahmed Ganie has been enlarged on bail by Trial court vide its order dated July 10, 2020 whereas similar treatment has been denied to the petitioner and his application has been declined vide order dated September 08, 2020 passed by the Trial Court. The petitioner has filed the instant bail application on the grounds that co-accused in the case has already been granted bail by the Trial court and, as such, on the ground of parity he is also entitled to bail.
Justice Sanjay Dhar after hearing Adv Mumtaz Choudhary for the applicant whereas ASGI Vishal Sharma for NCB observed that it is clear that the issue whether mandatory provisions of Sections 42 and 50 of NDPS Act have been violated by the respondent in the instant case can be determined only during trial of the case and not in these proceedings. As per the allegations made by the respondents, recovery of commercial quantity of Charas was affected from the possession of petitioner, therefore, the bar to grant bail as contained in Section 37 of NDPS Act is squarely applicable to facts of the instant case. The petitioner has been unable to persuade this Court to hold that there are reasonable grounds for believing that he is not guilty of offence under NDPS Act. Therefore, he does not deserve concession of bail. With these observations, Court dismissed the bail application.