M.K. Hanjura ORDER
M.K. Hanjura, J.
1. By order dated 24th July, 2017 of the learned Principal Sessions Judge, Budgam, an application for the grant of bail in favour of the applicant came to be rejected. The order of the learned Principal Sessions Judge, Budgam, is a sequel to the fact that the accused is involved in the commission of offences under Section 15/18 NDPS Act in case bearing FIR No. 140 of the year 2015, registered against him at Police Station, Chadoora.
2. Ghulam Ahmad Sofi, the accused whose bail application was rejected earlier in point of time by the order cited above, has filed yet another application before this Court on 22.08.2017, for admitting him to bail in the aforesaid offences, inter-alia, on the grounds that he has been falsely implicated in the commission of the offences imputed to him. The respondent, it is alleged has recovered poppy straw in powder weighing 58 Kg and 500 gm including the weight of the bags from the residential house of the applicant in his absence in contravention of the law relating to seizures. The seizure memo prepared by the respondent would reveal that no person living in his vicinity has been cited as a witness in the case. In the site plan prepared by the respondent, it has been shown that two houses are situated in contiguity to the house of the applicant and no one living in them has been cited as a witness to the alleged seizure of the poppy straw.
3. It is also stated that the quantity of poppy straw alleged to have been recovered from the residential house of the applicant falls with the scales of an intermediate quantity to which the rigor of Section 37 of the NDPS Act, does not apply. It is further stated that the applicant has been languishing in jail for the last more than fifteen months. The witnesses to be examined in the case are police officials. The applicant does not wield any control on them and they cannot be won over by him in case he is admitted to bail.
4. The respondents have resisted and controverted the application of the applicant chiefly on the grounds that poppy straw was recovered from the residential house of the applicant. The applicant has committed a heinous offence. The menace of the narcotics has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the applicant seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected, as the quantity of poppy straw recovered from the residential house of the applicant falls within the scales of commercial quantity.
5. Heard and considered.
6. The learned trial Judge after giving an account of the facts of the case has by a well-reasoned order held that 58 Kgs and 500 gm of poppy straw were seized in the case from the residential house of the accused and this quantity falls within the scales of the commercial quantity. The argument of the learned counsel for the applicant that the quantity of poppy straw seized from the residential house of the accused does not fall within the purview of commercial quantity is, therefore, a spurious argument and entails rejection on the face of it. Taking into consideration the quantity of poppy straw recovered from the residential house of the accused, the rigor of Section 37 of the NDPS Act, applies to the instant case in all the fours. The contention of the learned counsel for the applicant that the contraband seized from the residential house of the accused was not a part of the same assignment is a specious argument. It cannot be considered at this stage, as it would be too early in the day to return a finding on that count. This aspect can be looked into during the trial of the case including the one on the angle of conspiracy for which a specific charge has been framed by the trial Court as gets reflected from the order of the learned Principal Sessions Judge, Budgam.
7. In exercise of the powers conferred by clauses vii(a) and xxiii(a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527 (E) dated 16th July, 1996, except in respect of things done or omitted to be done before such supersession, the Central Government specified the quantity mentioned in columns 5 and 6 of the Table, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the purpose of the said clauses of that Section. Column 5 provides that a quantity upto 1000 gms of poppy straw falls within the parameters of small quantity and a quantity of 50 Kg falls within the scales of commercial quantity. The poppy straw recovered from the residential house of the applicant falls within the limits, bounds and the scales of a commercial quantity to which the rigor of Section 37 of the NDPS Act, applies. If a case falls within the scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility of the said provision in addition to other limitations prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as follows:
"[37. Offences to be cognizable and non-bailable;- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
(i) the public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail,]."
8. From the perusal of Section 37 quoted above, it is evident that no person can be enlarged on bail, if he is found to be in the possession of a commercial quantity of Narcotics and Psychotropic Substances Act or offences under Section 19 or Section 24 or Section 27-A Act, unless the Court comes to the conclusion that the accused is not guilty of such an offence. These restrictions are provided in addition to the checks and curbs imposed under the Code of Criminal Procedure or any other law governing the grant of bails. In the present case, as is reiterated here, the applicant has been found to be in the possession of 58 Kgs and 500 grams of poppy straw. On the basis of the recovery of such a huge quantity of poppy straw recovered from the residential house of the applicant, it can well be said that the applicant is prima facie involved in the commission for the offences aforesaid and there is no reasonable ground to believe that he is not guilty of such offences. The natural or unpresentable human propensity to always eat the forbidden fruits will ever find means and ways to frustrate the laws and rules prohibiting the use of all such stuff.
9. The contention of the learned counsel for the petitioner that the provisions of law under Section 42, 43, 50, 55 and 57 Narcotic Drugs and Psychotropic Substance Act, have been violated in the instant case has been rightly dealt with by the trial Court in holding that it cannot be taken into consideration at this stage, as apparently there is nothing on record to presume such violation. These circumstances would be explored only at trial. At this stage evidence of the prosecution has to be taken on its face value and the probative value of the evidence cannot be gone into.
10. Looking at the instant case from another perspective, there has been absolutely no change in the circumstances of the case from the date of the order of the trial Court till such time that the bail application has been moved before this Court. It is well settled law that no successive application for bail can be allowed/entertained unless and until there has been a change in the circumstances of the case. No doubt, the principle of res-judicata does not have its application to the bail applications but the Court has to peep deep to see whether there has been any perceptible change in the circumstances of the case and in case it is not found to be so, the filing of a successive application will lead to a bad precedent. An order rejecting an application of bail would not per se-close the doors of the applicant in moving another application on a subsequent occasion but the condition precedent is that there should be some fresh material and further developments in the case as will impel and actuate the Court to consider the successive application for bail. There is no legal bar in entertaining the subsequent application if it is pointed out that there has been a change of substantial nature in the facts and circumstances of the case since the date of passing the earlier order. Nothing to substantiate so has been stated in the application on hand.
11. In view of the preceding analysis, there appears to be no merit and substance in the application of the applicant. The same entails dismissal and is, accordingly, dismissed. The applicant shall be at liberty to move a fresh application for the grant of bail in his favour before the trial Court which shall be decided on its merits.
12. A copy of this order shall be sent to the learned trial Court.
© Manupatra Information Solutions Pvt. Ltd.