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Fayaz Ahmed Sheikh v/s State of J & K

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Bail. App. No. 196 of 2018

    Decided On, 01 July 2019

    At, High Court of Jammu and Kashmir


    For the Petitioner: Pawan Kr. Khajuria, Advocate. For the Respondents: Amit Gupta, AAG.

Judgment Text

1. In this bail application, the petitioner inter alia seeks grant of bail in FIR No.69/2017 registered at Police Station, City, Jammu under Sections 8/21/22/60 of N.D.P.S Act.

2. Facts giving rise to the filing of the instant application, briefly stated, are that on 12.12.2017 at about 21:30 A.M a police party of Police Station, City Jammu, during naka checking, found one Car bearing registration No.HR30G/5301 was coming from Vivek Nanda Chowk towards Residency road, it was stopped and the accused was found driving the aforesaid Car; On search of the Car, 17 bottles of Kuffcare and 13 bottles of Corex were recovered from the possession of the accused. On the basis of which, FIR No.69/2017 under sections 8/21/22/60 of NDPS Act was registered and the investigation was commenced. During investigation, the contraband was seized, accused was arrested and after completion of challan, the same was produced before the competent court of jurisdiction and at present the case is pending before the Court of learned 1st Additional Sessions Judge, Jammu.

3. In the bail application, it has been stated that there was no compliance of sections 50, 55 and 57 of Act; there are contradictions in the statements of prosecution witnesses; that independent witness has been turned hostile; that no CFSL form has been filled on spot.

4. Despite directions, respondent/State has not filed objections.

5. Heard learned counsel for the parties and perused the relevant documents annexed with the petition.

6. Learned counsel for the petitioner has reiterated all the grounds taken in memo of petition and in support of his arguments, he has relied upon the judgment of this Court in case titled Aasif Ishtiyaq & Anr. Vs State of J&K & ors., reported in 2017 (5) JKLT 333.

7. From bare perusal of the documents annexed with the petition, it is evident that PWs Subash Chander ASI, Majid Ahmed SGCT and Mohd Ramzan SGCT have clearly supported the prosecution case. However, independent witness, namely, PW-Umar Nazir has been turned hostile. It further appears from the documents annexed with the petition that the applicant had moved an application before the 1st Additional Sessions Judge, Jammu for grant of bail on 26.09.2018, which was dismissed vide order dated 15.10.2018 on the ground that the offence committed by the accused is serious in nature, which is against the society.

8. The first ground taken is that there was no compliance of section 50, 55 and 57 during investigation. The contraband has been found from car and not from personal search, so there was no need to comply section 50 of Act. Provisions of section 55 and 57 are directory in nature and not mandatory, so prosecution case even if there are violations of these provisions, cannot be doubted. Further, law is clear that the detail appreciation of evidence cannot be conducted while considering the bail petition, which court has to conduct at the time of passing final judgment. From the material on record, there are reasonable grounds to believe that there is prima facie material against accused. Section 37 of Act clearly bars the grant of bail in such like cases. The material witnesses are yet to be examined and the law cited by learned counsel for the petitioner is also not applicable in the present set of circumstances, so I am of the considered view that this petition is not maintainable. Drug menace has ruined the life of young person's especially students now a day. The accused person involved in such cases cannot claim bail as a matter of right. The court should deal with such accused with iron hand.

9. In 2017 (1) SCC 653, Bachpan Bachao Andolan vs Union Of India And Ors., on 14 December, 2016, Hon'ble Supreme Court in WRIT PETITION (CIVIL) No. 906 of 2014 has held as under;-

"14. The importance of adopting a holistic solution to deal with issues pertaining to alcohol, tobacco and drug abuse in the school curriculum has to be adequately emphasized. We are of the view that since the entire issue is pending consideration before the government, it would be appropriate to await the ultimate formulation. However, we may indicate that rather than resting on an "implied inclusion" of such an important subject within an extant head or topic, it would be appropriate if the competent authorities consider how children should be protected from the dangers of substance abuse. These are matters which should not be brushed under the carpet. The authorities should consider how children should be sensitised (having due regard to the age and stage of the child) of the dangers of drug use, the necessity to report drug use and the need to develop resistance to prevailing peer and social pressures.

15. The enormity of the problem makes it impractical for the judicial process to address all issues in one proceeding. We have addressed three systemic issues mentioned above. We have done so on the basis of the existing policy framework of the Union government, as evidenced by the material to which we have adverted in the prefatory part of this judgment. We have not laid down policy in exercise of judicial review. We have issued directions to enforce obligations under the existing legislative and administrative framework.

16. We proceed to summaries, our directions to the Union government, as indicated earlier: The Union government shall

(i) Complete a national survey and generate a national data base within a period of six mont

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hs; (ii) Formulate and adopt a comprehensive national plan within four months, which will among other things also address the areas of immediate concern noted earlier; and (iii) Adopt specific content in the school curriculum under the aegis of NEP. 17 We dispose of the writ petition with the aforesaid directions. However, we grant liberty to the petitioner to move the court in separate proceedings when it becomes necessary to do so including on various aspects which have been the subject matter of these proceedings. 10. In the result, the bail application is dismissed.