JUDGMENT

SANJAY DHAR, J. –

1. The petitioner, through the medium of present petition, has invoked jurisdiction of this Court under Section 483 of BNSS seeking bail in a case arising out of FIR No.55/2023 for offences under Section 8/15/21 of NDPS Act and Section 3/181 of Motor Vehicles Act registered with Police Station, Yaripora Kulgam, which is stated to be pending before the Court of learned Principal Sessions Judge, Kulgam.

2. As per case of the prosecution, on 22.05.2023, Police Personnel of Police Station, Yaripora, were on Naka duty at Peerbal Frisal. At about 12.30 p.m., a vehicle bearing No.JK02AU-0653 (I20) was proceeding from Arwani. Said vehicle, on being stopped, was subjected to search, whereupon a green coloured nylon bag and a white coloured nylon bag were recovered. Upon opening, the green coloured nylon bag, 12 bottles of Cofmaster-C with label Codeine Phosphate were recovered whereas from the white coloured nylon bag, powder-like substance was recovered. The driver of the vehicle, the petitioner herein, could not furnish any justification for possession of the aforesaid substances. The recovered substances were seized along with the vehicle in question and the petitioner was taken into custody.

3. During investigation of the case, the recovered powdered substance was found to be weighing 11 kgs. The samples were drawn from the recovered powdered substance as well as from the recovered bottles of Cofmaster-C and the same were sealed in presence of the Executive Magistrate. The samples were sent to FSL for chemical analysis and as per report of the FSL, the sample relating to powered substance was found to be plant material of Papaver Soniferum whereas Codeine Phosphate Chlorpheniramine Maleate was detected in the sample relating to bottles of Cofmaster-C. After investigation of the case, offences under Section 8/15/21 of NDPS Act read with Section 3/181 of Motor Vehicles Act were found established against the petitioner and the challan was filed before the Court of learned Principal Sessions Judge, Kulgam.

4. Vide order 16.10.2023, learned trial court framed charges for offences under Section 8/15/21 of NDPS Act read with section 3/181 of Motor Vehicles Act against the petitioner. Vide order dated 01.10.2024, the application filed by the petitioner for grant of bail was dismissed by the trial court, primarily, on the ground that the petitioner is involved in commission of offence relating to possession of commercial quantity of contraband substance.

5. The petitioner has sought bail on the grounds that all the material witnesses of the case have already been examined. It is being contended that the evidence recorded before the trial court does not make out a case against the petitioner and from a perusal of the statements of the prosecution witnesses recorded so far, it can safely be stated that the petitioner is not guilty of the offences for which he has been charged. It has also been contended that only one bottle, out of 12 bottles of Cofmaster-C alleged to have been recovered from the possession of the petitioner has been sent for chemical analysis, as such, there is no evidence on record to show that the remaining 11 bottles of Cofmaster-C were containing Codeine Phosphate. Thus, at best the petitioner can be alleged to have committed the offence involving possession of intermediate/small quantity of contraband substance, as such, the provisions contained in Section 37 of the NDPS Act are not attracted to his case.

6. The respondent-State has resisted the bail petition by filing objections thereto. In its objections, the respondent-State, besides narrating the allegations made in the charge sheet against the petitioner, has submitted that the petitioner is involved in a serious offence against the society at large and, therefore, he does not deserve the concession of bail. It has been submitted that there are reasonable grounds for believing that the petitioner would jump the concession of bail, if granted. It has also been contended that the petitioner is involved in an offence involving possession of commercial quantity of contraband substance, as such, in the face of provisions contained in Section 37 of the NDPS Act, he does not deserve the concession of bail.

7. I have heard learned counsel for the parties and perused record of the case.

8. While granting or refusing bail to an accused, the Court has to take into account the factors like prima facie or reasonable ground to believe that the accused has committed the offence, nature and gravity of the charge, severity of punishment in the event of conviction, danger of the accused absconding or fleeing, if released on bail, character, behavior, means, position and standing of the accused, likelihood of the offence being repeated, reasonable apprehension of the witnesses being tampered with and the danger of course of justice being thwarted by grant of bail. When it comes to the offences punishable under NDPS Act, particularly those which involve possession of commercial quantity of contraband substance, the court has also to keep in view the conditions stipulated in Section 37 of the NDPS Act. As per the said provision, before a person accused of committing an offence involving commercial quantity of contraband substance is released on bail, the Public Prosecutor has to be given an opportunity to oppose the application and the court has to satisfy itself that 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.

9. According to the petitioner, the evidence led by the prosecution, prima facie, goes on to show that he is not guilty of offence relating to possession of commercial quantity of contraband drugs. In this regard, learned counsel for the petitioner has taken me through the statements of ten prosecution witnesses, that have been recorded during trial of the case

10. It has to be borne in mind that at the stage of considering bail application of an accused, the evidence led by the prosecution cannot be meticulously examined. It is only if from a cursory look at the evidence recorded during trial of the case, it is possible to frame an opinion that accused is not guilty of offence involving commercial quantity of drugs that he can be enlarged on bail. If such an opinion can be framed only after meticulous examination and appreciation of the evidence on record, the same is to be left for determination at the final stage of the case and not while considering a plea for bail of the accused.

11. Learned counsel for the petitioner has argued that the evidence on record would show that only one bottle out of 12 seized bottles of Cofmaster-C, that were alleged to have been recovered from the possession of the petitioner, has been sent for FSL chemical analysis, which is clear from the evidence led by the prosecution. It has been submitted that in the face of this position, there is nothing on record to suggest that in remaining 11 seized bottles of Cofmaster-C, were containing Codeine Phosphate. Thus, at best, it can be stated that the petitioner was found to be in possession of one bottle of Cofmaster-C containing 100 ml of Codeine Phosphate mixture besides 11 kgs of Poppy Straw. On this basis, it is being contended that there are reasonable grounds for believing that the petitioner in not guilty of offence of possessing commercial quantity of contraband drugs.

12. learned counsel appearing for the respondent has contended that it was not necessary for the Investigating Agency to send all the 12 recovered bottled of Cofmaster-C to FSL for their chemical analysis as similar solution was found in all the 12 bottles. It has been contended that the chemical analysis of one recovered bottle has reflected presence of Codeine in it and the same can be taken as representative sample of all the recovered bottles. To support his contention, the learned counsel has relied upon the judgment of the Supreme Court in the case of Vijendrajit Ayodhya Prasad Goel vs. State of Bombay, AIR 1953 SC 247.

13. If we have a look at the evidence on record, that has been led by the prosecution before the trial court, it is clear that only one bottle, out of seized 12 bottles of Cofmaster-C containing 100 ml solution each, has been sent to FSL for chemical analysis and as per the result, the said bottle was found to contain Codeine. The question that arises for determination is as to whether the sample sent by the Investigating Agency to the FSL in the present case qualifies to be the representative sample of the recovered bottles. In this regard, it is to be noted that in the seizure memo, the batch number and the nature of solution contained in the recovered bottles is not mentioned. Had it been a case where 12 bottles recovered from the possession of the petitioner pertained to same batch, one could have inferred that the sample sealed by the Investigating Agency and sent to the FSL for chemical analysis, is representative sample of the recovered bottles of Cofmaster-C. But such is not the case as there is no material on record to suggest that the recovered bottles were bearing the same batch number. The ratio laid down by the Supreme Court in Vijendrajit’s case (supra), therefore, may not apply to the facts of the present case, as in the said case, there was evidence on record to show that all the bottles recovered by the police contained the same stuff. In the present case, the evidence on record does not, prima facie, show that the recovered bottles pertained to the same batch, which could have led to inference that all the recovered bottles contained the same stuff.

14. In the face of aforesaid discussion, prima facie, it appears that out of 12 recovered bottles of Cofmaster-C, only one bottle sent to FSL for chemical analysis was proved to contain Codeine. There is no opinion of the FSL expert in respect of other 11 recovered bottles. It is to be noted that 11 kgs of Poppy Straw were also stated to have been recovered from the possession of the petitioner. From this, it appears that there are reasonable grounds for believing that the petitioner is not guilty of offence of possession commercial quantity of contraband drugs.

15. The respondents have not placed on record any material to show that the petitioner has any previous history of having indulged in the trade of illicit drugs nor have they placed on record any material to show that in case he is admitted to bail, he is likely to commit similar offences. Thus, the petitioner has succeeded in carving out a prima facie case for grant of bail in his favour.

16. Apart from the above, the petitioner is in custody since 22.07.2023, meaning thereby he has spent more than two years in custody. It appears that trial of the case is complete and the case is at the stage of defence evidence. In these circumstances, if the petitioner is enlarged on bail, there is no scope for him to tamper with the prosecution witnesses.

17. For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions:

(i) That he shall furnish personal bond in the amount of Rs.50,000/ with two sureties of the like amount to the satisfaction of the learned trial court;

(ii) That he shall appear before the learned trial court on each and every date of hearing.

(iii) That he shall not leave the territorial limits of the Union Territory of J&K without prior permission of the learned trial court;

(iv) That he shall not intimidate or tamper with prosecution witnesses/evidence.

(v) That he shall not indulge in similar activities;

18. Observations made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as expression of an opinion on the merits of the case.

19. The bail application shall stand disposed of.

Petition allowed.

********