Srinagar: The Jammu and Kashmir High Court on Friday dismissed bail plea of a “drug peddler” arrested by police at Sumbal Bandipora in August 2015.
The alleged drug peddler Riyaz Ahmad Baba had the application through his father Ghulam Mohi-ud-Din Baba for bail. In the application, it has been stated that as per the prosecution case, on 18 August 2015 Police Station Sumbal along with other police personnel apprehended two persons who were carrying polythene bags. They were put to search and 20 bottles of Rancof and 400 gms of charas were recovered from Ghulam Hassan Teli and seven bottles (02 bottles of Rancof, 03 bottles of Rancodex and 02 bottles of Kofedol) were recovered from the Baba. Accordingly a case (FIR No.150/2015) was registered and investigation started. On completion of investigation, police filed charge sheet against Baba and Teli for the commission of offences under Section 8/20 and 21 NDPS Act. Baba claimed that since he had been falsely implicated, therefore, he moved the Court of Principle Sessions Judge, Bandipora who 24 September 2015 enlarged him on interim bail which was later on made absolute by subsequent order passed on 29 October 2015.
The trial Court later framed the charges and the prosecution examined a couple of witnesses. Baba said that while was attending the court regularly, the trial Court on 19 September last year ordered police to take him into custody to be lodged in District Jail, Baramulla.
Faced with the position, Baba had moved an application before the trial Court for bail was rejected on 3 November last year. Baba had petitioned the high court against rejection of the bail by teh trial court.
After considering the submissions made counsels for the parties, a bench of Justice Sanjeev Kumar said that it was true that during investigation Baba was admitted to bail on the plea that the contraband items allegedly recovered from him was of small quantity. However, after concluding the investigation police also added Section 29 NDPS Act and accordingly, the charge-sheet was filed before the Court. Baba was charge-sheeted for commission of offences under Section 8/20, 8/21 read with Section 29 NDPS Act.
“With the addition of Section 29 NDPS Act, (Baba) too (along with Teli ) was deemed to have committed offences, viz-a-viz the contraband item which was of commercial quantity.”
With this changed position, Baba was required to apply for bail for commission of offence under Section 29 NDPS Act also. Since he did not move any such application, the trial Court had no option but to send him to jail, the court said. “There was no requirement of cancelling or withdrawing the earlier order of bail granted in favour of (Baba) as it was not a case of cancellation of bail already granted but it was a case of arresting (Baba) for commission of offence under Section 29 NDPS Act. (Baba also knew that he was required to seek bail for offence under Section 29 NDPS Act also, therefore, he moved a fresh application before the trial Court. The trial Court after taking note of the fact and circumstances of the case and the nature of the offence attributed to (Baba) declined to grant the bail,” the court said.
From the perusal of bail application, the court said, it would transpire that Baba has not pointed out any change in circumstances after the dismissal of his bail application by the trial Court nor has he been able to make out a case for grant of bail. “The contention of the counsel for (Baba) that (Baba) being on bail for offences under Section 8/20 and 8/21 NDPS Act could not have been sent to custody by the trial Court is totally misconceived and cannot be accepted,” the court said, adding, “Undoubtedly, (Baba) had been enlarged on bail for possessing the quantity of contraband which was not commercial. This weighed with the trial Court when (Bab) was granted bail, but subsequently with the addition of Section 29 NDPS Act, (Baba) was also found prima facie involved in possessing the contraband item of commercial quantity. He was, thus, required to be treated at par with his associate, namely, Ghulam Hassan Teli. “Therefore, there was nothing wrong with the order of the trial Court sending him to custody and thereafter refusing his application for bail. There is a serious charge against (Baba) of possession of contraband item of commercial quantity, therefore, keeping in view the rigors as provided under Section 37 of the NDPS Act, (Baba), at this stage, does not deserve concession of bail.”
