Section 2(viii), 2(viiib), 2(xxiv), 2(xxv), 2(xxviii) of NDPS Act define the words “conveyance”, “illicit traffic”, “to import inter-State” and “to transport”: High Court Of Kashmir and Ladakh

The petitioner files an application for grant of bail before The Principal Sessions Judge, Baramulla and also the same was held in the judgement passed by a single bench judge comprising HON’BLE SRI JUSTICE  VINOD CHATTERJI KOUL, in the matter Mohammad Tajamul Masoodi  V. Union Territory of Jammu and Kashmir, dealt with an issue mentioned above.

The application vide order dated 20th June 2020, has been rejected,  It is in consequence thereof, that instant application has been filed. The case set up by the applicant is that applicant is a businessman and partner of M/s Adab Traders, doing business of trading goods from Kashmir to other parts of India for last many years and is also engaged in Cross Border Trading under the guidelines issued by Government of India and there is one more firm M/s Kaloo Traders, which is owned by Shri Gul Azhardin Gauhar, which is also doing the cross border.

It was submitted that the police have set up the whole case against the accused on the behest of the owner of M/s Kaloo Traders by planting one receipt of the consignment, of which the contraband was part of, by alleging that the same receipt was signed and handed over by accused no.2 to the driver of the truck 2 Bail App no.72/2020, which is impossible in the light procedure followed in Cross LOC Trade as the same does not allow any person to come in contact with the vehicle and its driver before it is inspected and verified by the concerned agencies.

It was also averred that since the case registered by police seems to be false and fabricated one and applicant, being innocent immediately after his arrest, moved an application for grant of bail before this Court which was rejected as the investigation was going on and but after the presentation of challenge, applicant filed a petition under Section 561-A Cr.P.C. No.110/2018 along with Cr.M.C. No.388/2018 before this Court and the petition was disposed of vide order dated 3rd October 2018, with a direction to the court below to hear and conclude the trial of the case expeditiously, preferably within two months.

Learned counsel appearing for the applicant stated that since the investigation in the case is over, detention of the applicant for any more period would amount to conviction. It is contended that the applicant has not committed any offence, rather the case is based on doubt and conspiracy, While considering a bail application, it is necessary to take into account, firstly whether the accused would take up the trial without hampering it and secondly, whether he  Bail App no.72/2020 would subject himself to the verdict of the Court.

In the present case, it is alleged that 65 kgs of contraband have been recovered from the offending truck, which admittedly is of commercial quantity. The allegation applicant is that he happens to be a partner of M/s Adab Trading Company and he is also dealing with the cross LOC trade, also a vehement submission in the present case on behalf of learned counsel for the petitioner, as also claimed in the application, is that applicant was not having conscious possession of the consignment – contraband seized. This contention does not sound convincing.

The concept of possession has been explained by the Supreme Court in the case of Mohan Lal Vs. The state of Rajasthan, 2015 (6) SCC 222; Now, at this stage, this Court relegates itself to Section 37 of the NDPS Act to ascertain its mandate while considering a bail application.

The court perused the facts and argument’s presented, it thought that- “In light of the facts of the instant case as well as because of the legal exposition considered and discussed hereinabove, this Court, at this stage prima facie for this bail application, is unable to form the required satisfaction that there are reasonable grounds for believing that applicant is not guilty of an offence and hence this Court cannot persuade itself to accede to the prayer of the applicant for being enlarged on bail. Accordingly, the bail application is rejected. It is clarified that any observation made hereinabove may not be construed as an expression on the merits of the case and is solely for this bail application and shall not affect the trial. Later it was  Dismissed”.

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Judgment Reviewed by: Mandira BS 

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