Contraband Recovered Individually From Accused Persons Travelling Together Has To Be Considered Separately At Stage Of Bail: J&K High Court
The Jammu and Kashmir High Court held that contraband recovered from accused persons individually, even when they are travelling together, has to be considered separately for each accused for the purpose for the bail.It was the case of the prosecution that both of the accused persons, who were carrying the banned contraband had acted under common intention to commit the offence and the...
The Jammu and Kashmir High Court held that contraband recovered from accused persons individually, even when they are travelling together, has to be considered separately for each accused for the purpose for the bail.
It was the case of the prosecution that both of the accused persons, who were carrying the banned contraband had acted under common intention to commit the offence and the quantity recovered together constituted a commercial quantity invoking the rigors of bail.
A bench of Justice Sindhu Sharma held that the recovery of contraband was to be considered individually and on doing so same did not constitute a commercial quantity and therefore the consideration of the bail will be governed by the section 437 CRPC and not under section 37 of the NDPS Act.
The court noted that from the personal search of the applicant, one polypack containing heroin weighing 104.89 gms was recovered, and 106.86 gms were recovered from the pocket of the co-accused and both taken individually constituted only an intermediate quantity.
The court said that although both of them were travelling in the same vehicle but recovery was made individually thus same will have to be considered separately for determining the quantity of the substance.
The respondent had argued that the quantity of narcotics seized fell within the ambit of commercial quantity. it was contended that all the accused persons were in connivance with each other for illegal trade and supply of banned heroin substance which they have procured by illegal means.
It was also submitted that the offences under which accused were arraigned were serious in nature and it was necessary to keep them behind bars as they posed threat to the society.
The court said the fact that all the accused persons were acting under common intention was to be determined during the course of trial and at the stage of bail the applicant was only carrying the contraband of intermediate quantity.
The court noted that the accused had been under detention for six months and the investigation in the case was complete and accused were no more required as the chargesheet was also filed before the court.
The court relied on Amarsingh Ramjibhai Barot vs. State of Gujarat wherein the Apex Court observed that High Court had proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased however same was not right in the absence of any evidence leading to conclusion of any conspiracy within the meaning of section 29 NDPS and since the recovery was made individually therefore view taken by High Court regarding conspiracy was incorrect.
The court directed the release of the applicant on furnishing the personal bond to the tune of Rs. 1,00,000/- with one surety of the like amount to the satisfaction of the Trial Court and directed the applicant to comply with the conditions appended to the grant of bail.
BACKGROUND
The applicant filed the present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail for alleged offences under Sections 8, 21, and 22 of the NDPS Act. It was the case of the prosecution that a police team was stationed at Naka, checking and doing routine security surveillance, when a vehicle was intercepted for inspection.
Upon stopping the vehicle, three individuals were found inside the car and during the course of physical search a transparent polypack containing a heroin-like substance, was allegedly recovered from one accused which weighed 104.89 grams. Similarly, a search of another accused resulted in the recovery of another transparent polypack containing a similar banned substance, also from the front right pocket of his jeans, which weighed 106.86 grams. Thus, based on the recoveries, FIR was registered for offences under Sections 8, 21, and 22 of the NDPS Act.
During the investigation, an additional charge under Section 29 (criminal conspiracy) of the NDPS Act was also added. The applicant earlier approached the learned Additional Sessions Judge (Special Judge under the NDPS Act), with a bail plea but same was rejected on the ground that the investigation was ongoing, and considering the serious nature of the offences, the court deemed it inappropriate to grant bail at that stage.
APPEARANCE:
N. D. Qazi,, Advocate For Petitioner
Sumeet Bhatia, GA For Respondents
Case-Title: Abdul Hamid vs UT OF J&K
Citation: 2025 LiveLaw (JKL) 147