1 S. No. 5 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Bail App No. 94/2024 Mohammad Ayoub Dar …Petitioner(s) Through: Mr. A. M. Mir, Advocate. Vs. Union Territory of J&K and Ors. ...Respondent(s) Through: Mr. Hakim Aman Ali, Dy.AG. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 11.03.2025 (ORAL) 1. The petitioner in the instant petition is seeking bail in case titled as “Mohd Ayoub Dar Vs. UT of J&K and Anr.” pending trial before the court of Principal Sessions Judge, Bandipora, after the first application seeking bail filed by the petitioner herein came to be rejected by the said court in terms of order dated 16.08.2024. 2. According to the prosecution version on 16.02.2023 Police Station Sumbal received a docket through SgCt Tariq Ahmad 405/Bpr from In-charge Naka Party S.I. Mehraj-ud-Din No.04/Bpr for lodging of an FIR to the effect that while performing Naka duty at Shilvat near petrol pump one Scotty bearing registration No.JK05F-5593 came to be intercepted and during search thereof 10 Bottles of Codeine Phosphate were recovered from it and after subjecting the rider of the Scotty to preliminary questioning, he, the rider, disclosed his name as Mohammad Ayoub Dar S/o Ghulam Ahmad Dar R/o Ganastan and admitted that he is selling the said drug among the youth on exorbitant rates, whereupon FIR No.33/2023 came to be registered for offences under Section 8/21 NDPS Act, 1985 and investigation set into motion and during the course of investigation the said accused confessed that he had bought the said drug from one Mehraj-ud-Din Parray S/o Mohammad Maqbool Parray R/o Inderkote Sumbal whereupon the said accused as well came to be arrested and upon his identification, 2 05 more bottles of Codeine Phosphate were recovered from him and consequently Section 29 of the NDPS Act 1985 came to be incorporated in the said FIR and upon completion of investigation chargesheet was laid before the court of Principal Sessions Judge, Bandipora on 10.04.2023. 3. 3. The petitioner herein in the present petition claims to be an innocent and law abiding citizen having never committed any offence much less those alleged in the case and that prior to the filing of instant petition, he, the petitioner herein, filed a bail application before the trial court which, however, came to be dismissed on 16.08.2024 and that the petitioner herein is facing trial for the last 18 months and though charges stand framed against him and the co-accused and out of 14 listed witnesses, no prosecution witness so far examined by the trial court deposed against the petitioner herein and that the co- accused stands already bailed out by the trial court on 27.05.2023 and that the quantity of drug allegedly seized from the petitioner herein does not constitute a “commercial quantity” thus, entitle the petitioner to the concession of bail. 4. Objections to the petition have been filed by respondents wherein the prosecution version is being reiterated and petition is being opposed on the premise that the petitioner herein is involved in a serious offences and, as such, is not entitled to concession of bail. Heard counsel for the parties and perused the record. 5. Counsel for the petitioner while making his submissions in line and tune with the case set up in the instant petition would heavily rely upon the judgement passed by this Court in case titled as “Firdous Ahmad Payer Vs. State of JK through SHO Police Station Dangiwacha, Baramulla and Anr”., being B.A No. 133/2018 decided on 17.10.2018 and would contend that in the said case, the petitioners therein stand admitted to bail by this Court for similar allegations of possessing and recovery of the drug i.e. 10 Bottles of Codeine Phosphate and that in the said judgments the Co-ordinate 3 Bench has analyzed that the quantity of drug contained in 10 Bottles does not fall within the “commercial quantity”. 6. In view of the aforesaid submission of the appearing counsel for the petitioner, it is deemed appropriate to refer to the analysis undertaken by the Co-ordinate Bench in the case Firdous Ahmad Payer supra qua the drug in question and in this regard a reference of paras 7 to 13 thereof are referred hereunder: - 07. Looking at the merits of the application on hand, it needs must be said that in exercise of the powers conferred by clauses (viia) and (xxiita) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue notification S.O. 527(E) dated 16th July, 1996, except in respect of things done or omitted to be done before such supersession, the Central Government specified the quantity mentioned in columns 5 and 6 of the Table, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and the commercial quantity, respectively, for the purposes of the said clauses of that section. Column 5 provides that a quantity upto 10 grams of Codeine falls within the parameters of small quantity and a quantity of 1 Kg of the same substance falls within the scales of the commercial quantity. The contraband seized in the case, as is repeated herein, is Maxcoff-T (Codeine) to bottles of 100 ml each which makes the total quantity of the entire mixture of the contraband as 1000 mls. Although, the quantity of the contraband is in liters which is the unit of Volume and the quantity of the, contraband shown in the Notification is in gms (Kg) which is the unit of mass/weight, and there is absolutely no formula in physics by which volume can be converted into mass, yet, it has been found out that 1 litre of water at room temperature is equal to 958 gms. If the same formula is applied to the seized contraband, the quantity is in any case less than 1 kg and does not fall within the fours of the commercial quantity to which the rigor of Section 37 of the NDPS Act applies. Moreover, it is interesting to note the definitions of Commercial Quantity, as contained in Section 2 (viia) & Small Quantity as detailed in Section 2 (xxiiia) of the NDPS Act, which read as under: "Commercial Quantity", in relation to narcotic drugs and psychotropic substances means any quantity greater than the quantity specified by the central government by notification in the official gazette; "Small quantity" in relation to narcotie drugs and psychotropic substance means any quantity lesser than the quantity specified by the central government by notification in the official gazette; 4 Going by the definition of the small and the commercial quantities, as spelt out above along with the notification appended to the NDPS Act, what comes to the surface is that a smaller quantity is a quantity lesser than 10 gms, irrespective of the same having been shown in column 5 of the notification as a small quantity. The quantity of 10 gms is actually an intermediate quantity and the commercial quantity is a quantity greater than the one specified in the notification, although in column 6 of the notification, the same has been labeled as a commercial quantity. It falls within the range and scope of an intermediate quantity, when tested on the touchstone of the definition of the commercial quantity This point has been settled in the case titled "Ratto v. State of 11.P", reported in 2003 2 Curl)(HP) 227", Paragraph Nos. 41 & 42 of which are detailed below, word for word and letter for letter: "41. As already noted there is hardly any ambiguity, much less conflict between section 2 (vita) and the notification as extracted herein above for determination of what would be the commercial quantity. By virtue of powers conferred under Sub Section (viia) of Section 2. Central Government is authorized to notify as to what would be the commercial quantity. Because the "Commercial quantity" on a plain reading of its definition amongst other things has to be greater than the quantity specified by the Central Government by notification..." Under 2001 Act notification supra was issued specifying the quantity for the purpose of Section 2 (vita) of the Act. A perusal of this notification indicates that quantity specified is one kilogram Various columns of the notification extracted hereinabove have to be read in conjunction with the substantive provision of Section 2(viia) of the Act. This also puts a harmonious construction on both, notification as well as Section 2(viia). While determining the quantity under this sub section, it has to be greater than one Kg. there is hardly any doubt regarding either the words one Kg", or the "commercial quantity" which has to be "greater than", which in our considered view would always mean any quantity more than/bigger than larger than one Kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading. Thus, it cannot be said that one Kg would be the commercial quantity for the purpose of Section 2(viia); as added by 2001 Act. 42. Another reason to take this view is that substantive and main provision of the Act is Section 2(viia) which is subject matter of the discussion in this judgment. It is also well known and accepted rule of interpretation of statutes that rules, regulations as well as 5 notifications issued there under are meant to sub serve the purpose of main provision of law and not other way round. Notification in the instant case, as extracted hereinabove, is a delegated legislation. Therefore, it can in no case bye-pass or over-ride the substantive provision of law and in case of conflict, delegated legislation has to give way to the main provision of law." 08. The settled position of law, as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail, is that there is no strait jacket formula or settled rules for the use of discretion, but, at the time of deciding the question of 'bail or jail in non-bailable offences the Court has to utilize its judicial discretion, not only that, as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principles as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down, from the earliest times, that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative, but the learned trial Court appears to have applied it in the reverse. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody, pending completion of trial, could be a cause of great hardship. From time to time, necessity demanded that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial, but, in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which he has not been convicted or that, in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 09. The expression 'judicial discretion' has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo, "the Judge, even when he is free, is still not wholly free He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to 6 the primordial necessity of order in the social life. Wide enough, in all conscience, is the field of discretion that remains." Even so, it is useful to notice the tart terms of Lord Camden that the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; in causal, and depends upon constitution, temper and passion. In the best, it is often times caprice, in the worst, it is every vice, folly and passion to which human nature is liable." 10. It is not disputed that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity, but it is an intermediary one On the face of such an eventuality, the application of the applicant had to be considered under the provisions of Section 497 of the Cr. PC. It is only on the application of the rigor of Section 37 of the NDPS Act to a given case that bail can be withheld. In any case, which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 of the Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case. 11. To categorize the materials in terms of quantity as small, medium and commercial is to allow escape routes for those to whom the rigor of section 37 of the NDPS Act does not apply. Had the intention of the Legislators been to treat those who are found to be in possession of the small and medium quantity of the drugs and Narcotic substances on par with those from whom commercial quantity of such substances is recovered, it could not have pierced and scaled it in different categories. The conflict between the human tendencies and the rules of society is an eternal one which cannot ever be solved or ended to the entire satisfaction of idealistic puritans. World of human society will always remain imperfect. It creates a false ethical self-importance on the part of the Courts who sit in judgment to decide or determine such cases not in accordance with the law, but by sentimental proverbs. 12. Testing the instant application from the above perspective, it requires to be recapitulated that the rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that the case of the applicant does not fall within the parameters of the offences that are punishable with death or imprisonment of life. Therefore, there appears to be no reasonable ground for declining bail to the applicant. The maxim of the law of bails, which has its application to the case on hand where the quantity of narcotics recovered from the applicant falls within the scales of an intermediary one, for which the punishment provided is upto 10 years and a fine of rupees one lac, is "bail and not jail". 13. Deprivation of liberty is tantamount to punishment. The principle that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty, has its application to the facts of the instant case in all the fours. The object of the bail is to seek 7 attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicant/applicant has been languishing in the jail for so many months by now. The applicant/accused has to prepare for his defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot get swayed by sentiments. Temper and passion have no role to play in exercising the discretion for the grant of bail. 7. Having regard to the case set up by the prosecution against the petitioner herein inasmuch as the aforesaid analysis undertaken by the Co-ordinate Bench in the case supra, it is evident that the judgement supra is squarely applicable to the instant case and therefore, this Court has no reason to take a different view than that has been taken by the Co-ordinate Bench in the case supra. 8. Accordingly, for the aforesaid reasons, the instant petition is allowed, as a consequence whereof the petitioner herein is admitted to bail subject to the following conditions: - i) Furnishing of personal bond to the tune of Rs.50,000/- with two sureties of the like amount to the satisfaction of the Superintendent, Kot Bhalwal Jammu. ii) The petitioner shall appear before the trial court on each date of hearing. iii) The petitioner shall not leave the territorial jurisdiction without prior permission of the trial court. iv) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts 9. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 11.03.2025 Ishaq Whether the order is speaking? Yes/No Whether approved for reporting ? Yes/No