HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Bail App No. 212/2024 Arun Yadav .....Petitioner/Applicant Through :- Ms.Vasudha Sharma, Advocate. v/s Union of India .....Respondent Through :- Mr. Sumant Sudan, Advocate vice Mr. Vishal Sharma, DSGI. CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT 07.03.2025 (Oral) 01. Petitioner has invoked special jurisdiction of this Court, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for bail, after his plea for the said relief, vide order dated 03.8.2024, came to be declined by the Court of learned Principal Sessions Judge, Samba [“the trial court”]. 02. Brief facts of the case are that officers of Narcotics Control Bureau (NCB), Jammu, on 10.03.2022 recovered 1113 bottles of codeine based cough syrup from the possession of one Mahendra Singh, resident of District Mathura, UP at Sarore Toll Plaza, Samba. Crime No. 08/2022, for the commission of offences under Sections 8, 21 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act] was registered and he came to be arrested on 11.03.2022. During investigation, accused-Mahendra Singh made a disclosure that he had received the aforesaid consignment, containing 6 cartoons of brown Colour codeine based cough syrup from a person namely Rinku of Delhi, to be Sr. No. 84 2 Bail App 212/2024 further handed over to some person in Srinagar. The investigating agency obtained CAF and CDR of the said accused, Mahendra Singh and the suspected supplier from concerned service provider and on analysis of the CDR, it surfaced that petitioner was in regular contact with accused, Mahendra Singh, who on examination disclosed that petitioner is the supplier of seized contraband and had been arrested by NCB, Jammu in crime no. 14/2022 under Sections 8, 22, 29 and 60 of NDPS Act dated 28.05.2022 and was already lodged in District Jail, Ambphalla, Jammu, in connection with seizure of 560 bottles of codeine based cough syrup. On the basis of the statement of accused, Mahendra Singh and the CDRs, the petitioner came to be arraigned as an accused in the present crime. 03. The bail plea of the petitioner came to be rejected by the trial court primarily on the ground of bar contained in Section 37 of the NDPS Act. 04. The petitioner is aggrieved of the trial court order dated 03.08.2024 primarily on the ground that he has been falsely implicated on the basis of statement of co-accused, Mahendra Singh and no contraband has been recovered from his conscious possession. He has requested for his release on bail. 05. Having heard learned counsel for the parties, I have carefully gone through the record. 06. While learned counsel for the petitioner has reiterated the grounds urged in the memo of petition, learned DSGI has defended the impugned order on the ground that petitioner is involved in the recovery of a commercial quantity of contraband and is not entitled to be enlarged on bail in view of Section 37 NDPS Act. 07. Admitted facts of the case are that petitioner came to be arraigned and arrested in the present case on the basis of his statement and statement made by 3 Bail App 212/2024 co-accused, Mahendra Singh, during investigation under Section 67 of NDPS Act, while they were in custody. The prosecution, in addition to the aforesaid statements of accused persons, seeks to rely upon the CDRs to establish that petitioner at the relevant point of time was in regular contact with the co- accused and they conspired with each other for the transportation and supply of the contraband. 08. Hon’ble Supreme Court in State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr.; 2022 (2) Supreme 409 has held that CDR details of an accused is an aspect which can be examined at the stage of trial. However, Hon’ble Supreme Court refused to interfere with the order passed by the High Court and dismissed the SLP filed by the NCB for cancellation of bail, on the ground that contraband was not recovered from conscious possession of the petitioners. Relevant excerpt captured in para 10 of the judgment reads as below:- 10. “It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tempering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16 January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No. @ Dairy No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail to the respective respondents, are dismissed as meritless.” 09. Admittedly, the contraband in the present case has not been recovered from the conscious possession of the petitioner. However, it also surfaced during investigation that petitioner after the present FIR had re-offended and was arrested in crime no. 14/2022 dated 28.05.2022 and was lodged in District Jail, Ambphalla, Jammu in connection with seizure of 560 bottles of codeine 4 Bail App 212/2024 based cough syrup. With respect to the habitual offenders, Hon’ble Supreme Court in Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh; AIR 1978 SC 429 has held that it is quite rational to enquire into the antecedents and record of a person who applies for bail, which suggests that he is likely to commit heinous offences while on bail. The Apex Court has ruled that exercise of bail discretion by the court on the basis of criminal record of an accused is not an exercise in irrelevance. A similar view was taken by Hon’ble Supreme Court in Neeru Yadav vs. State of Uttar Pradesh & Anr; (2016) 15 Supreme Court Cases 422, whereby judiciary is expected to be alert while admitting such kind of persons at large, and it emphasized on the exercise of judicious discretion. 10. However, learned counsels for the parties have informed this Court that the prime accused-Mahendra Singh, from whose conscious possession contraband in question came to be recovered and seized has since passed away. A perusal of the record also reveals that 05, out of 08 material prosecution witnesses, regarding search recovery and seizure have already been examined and it is only the formal witnesses including the person who deposited samples in the FSL, the FSL experts and the investigating officer, who are remained to be examined in the case now. The petitioner is already in custody for the last about three years. Therefore, in view of these peculiarities of the case, no fruitful purpose shall be served with further incarceration of the petitioner. 11. Hence, the present application is allowed and petitioner is directed to be enlarged on bail, in the present case, on his furnishing two surety bonds in the amount of Rs. 1.00 lac and a personal bond of the like amount, subject, however to the condition that he is not involved in any other case and he shall remain present in the trial court on each and every date of hearing. 5 Bail App 212/2024 12. It is made clear that this Court has not made any observation on the merits of the case and learned trial court shall be free to record its finding uninfluenced by this order. (Rajesh Sekhri) Judge JAMMU 07.03.2025 Abinash Whether the judgment is speaking? Yes Whether the judgment is reportable? Yes