PEER SAIF DIN TH HIS WIFE SHAREEFA vs UNION OF INDIA TH SUB INSPECTOR,NARCOTICS CONTROL BUREAU(NCB), JAMMU
- Court
- Jammu and Kashmir High Court
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Virtual Mode)
Bail App 296/2025
Reserved on:05.03.2026
Pronounced on: 08.09.2026
Uploaded on: 08.09.2026
Whether the operative part or full
judgment is pronounced: Full
1. Peer Saif Din, aged 60 years
…Petitioner(s)
S/O Peer Abdul Gani
R/O Waskura Handwara
Kupwara
Through his wife Shareefa,
aged 58 years
W/O Peer Saif Din R/O
Waskura Handwara
Through: Mr. Aijaz Ahmad Bhat, Advocate with
Mr. Abrar H. Khan, Advocate
Vs.
1. Union of India through Sub-
...Respondent(s).
Inspector Narcotic Control
Bureau, Jammu Zonal Unit,
House No. 322, Sec-C Sainik
Colony Jammu 180011
Through: Mr. Vishal Sharma, DSGI with
Mr. Eishaan Dadhichi, Advocate (th. virtual mode)
CORAM:HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGEMENT
1. Through the medium of the instant bail application,
having been filed in terms of the provisions of Section 439 of
the Code of Criminal Procedure, 1973 (now repealed and
1 | P a g e Bail App 296/2025
hereinafter referred to as the Code for short), corresponding
to the provisions of Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (for short, BNSS), the
petitioner/accused has sought his enlargement in Crime No.
11/2018 of the Narcotic Control Bureau, Jammu Zonal Unit,
registered under Sections 8/21, 28, 29 and 60 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act for
short), on the main grounds that he is innocent and has not
committed the alleged offences. That his earlier application
dated 18.08.2025 for grant of bail in his favour, filed before
the Court of the learned Additional Sessions Judge, Kathua
(with powers under the NDPS Act) (hereinafter referred to as
the trial court for short), came to be dismissed vide order
dated 11.10.2025 without appreciation of the facto-legal
grounds pleaded therein. That there was no legal evidence
with the respondent-agency justifying his involvement in the
case. That the petitioner/accused was arrested much after
the presentation of the final report/chargesheet against the
alleged main accused persons from whom the alleged narcotic
drug-heroin, is alleged to have been recovered. That the
petitioner/accused came to be arrested in the case on the
basis of the statements of the alleged main accused persons
made by them during investigation in the case in terms of the
provisions of Section 67 of the NDPS Act. That the accused
figuring in the main chargesheet are alleged to have accused
2 | P a g e Bail App 296/2025
the petitioner of being the main supplier of the recovered
narcotic substances. That during the course of further
investigation, a supplementary challan came to be presented
by the respondent-agency on 15.05.2024 against the
petitioner, who voluntarily surrendered before the Court.
That his custody was illegally handed over to the respondent-
Bureau with effect from 17.05.2024 to 20.05.2024, during
which illegal custody he is alleged to have confessed his guilt.
That the petitioner/accused stands linked with the
occurrence on the basis of the Call Diary Records. That the
petitioner/accused vehemently opposed the framing of any
charge against him, but the learned Trial Court proceeded to
frame the charge against him. That the learned Trial Court
denied bail to the petitioner/accused on the mere ground that
he stands charged for the offences under the NDPS Act in
relation to commercial quantity, attracting the bar under
Section 37 of the Act. That the main alleged accused stand
admitted to bail in the case. That the statements alleged to
have been made by the co-accused, as well as the petitioner
himself, in terms of Section 67 of the NDPS Act cannot be
considered in isolation and have to be read in synergy with
the provisions of Sections 25 and 27 of the Evidence Act.
That the alleged statements could not be corroborated by the
respondent-Bureau through any subsequent recovery or even
identification of a new fact and are, as such, inadmissible in
3 | P a g e Bail App 296/2025
view of the law laid down by the Hon'ble Supreme Court of
India in Toofan Singh's case. That the learned Trial Court has
misinterpreted the provisions of Section 37 in relation to the
petitioner/accused, as the allegations against him do not
seem to be prima facie true. That the provisions of Section 29
of the NDPS Act, also charged against the petitioner, are not
at all prima facie established, as the respondent-Bureau
could not establish any express or implied agreement as to
the commission of the offences charged, between the
petitioner and the co-accused. That the petitioner/accused is
an old-aged person suffering from multiple age-related
ailments. That the petitioner shall abide by any conditions
that may be imposed by this Court.
2. The respondent-Bureau has resisted the application
through the memo of objections on the grounds that the
petitioner is involved in the commission of heinous and anti-
social offences, providing for stringent punishment, and, as
such, he does not deserve his enlargement on bail to the
prejudice of public confidence in the justice delivery system.
That the liberty of an individual is subject to some reasonable
exceptions and the arrest of the petitioner has been made in
accordance with the procedure established under Article 22
of the Constitution of India. That the petitioner is involved in
the commission of the offences under the NDPS Act in
4 | P a g e Bail App 296/2025
relation to commercial quantity. That the learned Trial Court
has already framed charges against the petitioner/accused
under Sections 8/21, 28, 29 and 60 of the NDPS Act in the
backdrop of the facto-legal scenario of the case.
That, based on specific information, the respondent-
Bureau, Jammu Zonal Unit, effected the seizure of 22.145
Kgs of heroin at Pali Morh, Kathua (J&K), on 02.09.2018
from the possession of Bashir Ahmed Mir S/o Ali Mohd. Mir
R/o Village Lachipora, Kupwara, J&K; Feroz Ahmad Sheikh
S/o Gh. Mohi-ud-din R/o Sheikh Colony, Bagathpora,
Handwara, Kupwara; and Waseem Ahmed Bhat S/o Mohd.
Sultan Bhat R/o Shailal, Handwara, Kupwara, from a vehicle
bearing registration No. JK03C4756, and all the said accused
came to be arrested. That during the follow-up action at
Handwara, the NCB team recovered 38.070 Kgs of heroin
from 02 jute bags, which were kept in straw in front of the
house of accused Bashir Ahmed Mir S/o Mohd. Mir R/o
Village Lachipora, Kupwara, J&K.
That during the investigation of the case, all the three
accused made a disclosure in their statements recorded
under Section 67 of the NDPS Act to the effect that the
petitioner/accused was the main supplier of the seized
heroin. That the petitioner/accused himself also, during his
statement recorded under Section 67 of the NDPS Act, made
5 | P a g e Bail App 296/2025
a voluntary admission on 19.05.2024 to the effect that he
supplied the seized heroin, i.e., 60.215 Kgs, to Bashir Ahmed
Mir, with the further admission that he used mobile No.
9797785866 for trafficking the seized heroin. That the
analysis of CAF and CDR revealed that the aforementioned
mobile number was registered in the name of the
petitioner/accused and that he was in continuous contact
with Javed Ahmad Pir (supplier of the seized contraband).
That a supplementary complaint against the
petitioner/accused was filed before the learned Trial Court on
03.10.2024. That the petitioner is not innocent, as he is
involved in non-bailable and cognizable offences under
Sections 8/21, 28, 29 and 60 of the NDPS Act in Crime No.
11/2018 of NCB Jammu. That he, along with the co-accused,
has been found involved in the case. That a huge recovery of
the narcotic drug has been effected in the case involving the
petitioner and the co-accused persons. That the bail
application is hit by the provisions of Section 37 of the NDPS
Act, as a huge commercial quantity of narcotic substance is
involved in the case. That the act of the petitioner and his
associates is highly detrimental to society at large, especially
the youth.
That the petitioner/accused does not deserve the
concession of bail, having regard to the gravity of the offence
6 | P a g e Bail App 296/2025
and the impact of the crime on society. That the
petitioner/accused, despite repeated summons, remained
absconding for more than 5 years until he surrendered before
the Trial Court on 15.05.2024, whereafter a supplementary
complaint was filed against him disclosing the commission of
heinous and non-bailable offences by him. That the
petitioner/accused has direct involvement in the case
involving commercial quantity of narcotic substances and, as
such, he does not deserve any concession of bail.
3. I have heard learned counsel for the parties in
respect of the matter.
4. The learned counsel for the petitioner/accused Mr.
Aijaz Ahmad Bhat, Advocate while reiterating his stand
already taken in the bail petition submitted that the
petitioner has been falsely and frivolously implicated in the
crime, who is innocent. He contended that the petitioner was
not apprehended on the day of the alleged occurrence i.e.,
02.09.2018. That narcotic substance is not alleged to have
been seized from and at the instance of the co-accused. That
the petitioner has been involved in the case on the basis of
the alleged statements of the co-accused persons as well as
his own statement purported to have been recorded in terms
of section 67 of the NDPS Act, which statements even if would
have been extracted are not admissible and reliable as the
7 | P a g e Bail App 296/2025
same have not led the respondent-Bureau to any further
recovery or even identification of a new fact. The learned
counsel in support of his arguments placed reliance on the
three judge bench judgement of Hon‟ble Supreme Court cited
as Toofan Singh Vs. State of Tamil Nadu (2021) SCC 1 and
submitted that it has been authoritatively held in the said
judgement that confessional statements recorded under
Section 67 of NDPS Act are inadmissible in the trial of
offences under NDPS Act. He submitted that the Hon‟ble Apex
Court in the said case reasoned that officers of the Central
and State Agencies under the NDPS Act are essentially police
officers, thus, rendering such confessional statements
inadmissible. He further contended that the alleged
confessional statement did not lead the respondent-Bureau
to any recovery from the petitioner so as to make any such
statement admissible under Section 27 of the Evidence Act.
The learned counsel further contended that the
petitioner/accused voluntarily surrendered before the Trial
Court. He contended that the respondent-Bureau in alleging
on the basis of CDR analysis that he was in touch with
accused persons cannot furnish proof in support of the
prosecution case in absence of incriminating voice recording.
He further submitted that the petitioner is an old aged
person of 65 years of age who has his wife and grown up
daughters at home who has been suffering badly on account
8 | P a g e Bail App 296/2025
of his continuous detention since his arrest on 19.05.2025.
He contended that the bar under section 37 of the NDPS Act
is not at all attracted in the facts and circumstance of the
case as on the basis of mere vague and general allegations,
his alleged involvement cannot be supposed to be prima facie
true. He further contended that section 29 of NDPS Act also
charged against the petitioner is not at all made out in the
facts and circumstances of the case as no conspiracy can be
supposed in the facts and circumstance of the case. The
learned counsel further contended that bail is a rule and its
denial an exception especially in cases which do not carry
sentence of death or imprisonment of life in alternative and
secondly where there appear no reasonable grounds of
accused‟s misusing the concession of bail by tempering
with the prosecution evidence and absconding at the trial.
He submitted that the petitioner is ready to abide by any
conditions that may be imposed by this court while enlarging
him on bail.
5. Per contra , the learned counsel for the respondent-
Bureau vehemently submitted that the petitioner/accused is
not entitled to seek the concession of bail for being involved
in a heinous, non-bailable and anti-social offences under the
NDPS Act, in relation to commercial quantity.
9 | P a g e Bail App 296/2025
He contended that the petitioner, during the investigation
of the case, has come to be identified as the main supplier of
the seized consignment of the narcotic substance, i.e., heroin.
That the co-accused, who were arrested on spot on the date
of occurrence, i.e., 02.09.2018, as also the petitioner himself,
on his arrest, made disclosure to the effect of his involvement
as the main supplier.
He contended that the petitioner, after the occurrence took
place, absconded during a period of five years and did not
turn up despite issuance of repeated summons. That he
lastly surrendered before the Trial Court on 15.05.2024,
whereupon his custody was sought by the respondent-
Bureau for some days to enable it to complete the further
investigation and to file a supplementary complaint, which
was done on 03.10.2024.
The learned counsel for the respondent, Mr. Vishal
Sharma, learned DSGI, contended that the petitioner was
formally charged for the commission of offences under the
supplementary complaint, as there was sufficient material,
including the confessionary statements under Section 67 of
the NDPS Act as well as case diary record analysis regarding
his involvement.
10 | P a g e Bail App 296/2025
The learned counsel submitted that since a huge quantity
of the narcotic substance, heroin, stands seized in the case,
as such, the bar under Section 37 NDPS Act is attracted in
the case.
He further submitted that the act committed by the
petitioner is highly anti-social, being heinous in nature. He
further contended that the petitioner, who absconded for five
years after the occurrence, is likely to misuse the concession
of bail, if granted in his favour, by tampering with the
prosecution evidence and absconding at the trial.
He further submitted that, in view of the guiding
principles being evolved from time to time for consideration of
bail applications, especially in NDPS cases, including
heinousness of the crime, severity of punishment, likelihood
of the accused fleeing from justice, reasonable apprehension
of the accused misusing the concession of bail, and the
impact of the crime on the society and the State, the
petitioner/accused does not deserve leniency to the prejudice
of the society, especially the youth.
I have perused the record of the instant bail petition, the
objections filed in rebuttal by the respondent, and have also
accorded thoughtful consideration to the rival arguments
advanced on both the sides.
11 | P a g e Bail App 296/2025
6. The facts of the prosecution case relevant for
disposal of this application are that on 02.09.2018, an officer
of the respondent-Narcotics Control Bureau (NCB), Jammu,
recovered/seized 22.145 Kgs of heroin from the possession of
Bashir Ahmad Mir S/o Ali Mohammad Mir R/o Village
Lachipora, Kupwara, J&K, Feroz Ahmad Sheikh S/o Gh.
Mohi-ud-din R/o Sheikh Colony, Bagathpora, Handwara,
Kupwara, and Waseem Ahmad Bhat S/o Mohd. Sultan Bhat
R/o Shailal, Handwara, Kupwara, from vehicle bearing
registration No. JK03C4756 at Pali Morh, Kathua (J&K), and
arrested the said persons for commission of offences under
Sections 8/21, 28, 29 and 60 of the NDPS Act. That the
vehicle concerned was also seized.
That three arrested persons, from whose possession the
contraband was seized from the aforementioned vehicle,
voluntarily disclosed that the seized contraband was to be
delivered to Paramjit Singh S/o Jagit Singh R/o Tarn Tarn
(PB), at Transport Nagar, Jalandhar (PB), on 03.09.2018.
That the accused Bashir Ahmad Mir also disclosed that 38
packets of heroin had been concealed at his village,
Lachipora, Handwara, Kupwara. That during further follow-
up action, Paramjeet Singh S/o Jagit Singh R/o Tarn Tarn
(PB), proposed receiver of the seized contraband, was arrested
on 04.09.2018.
12 | P a g e Bail App 296/2025
That subsequently, during investigation, a team of
respondent-Bureau recovered 38 packets weighing 38.070
Kgs of heroin in front of the house of the accused Bashir
Ahmad Mir at Lachipora, Handwara, Kupwara.
That all the aforesaid three persons, from whom the
alleged contraband was recovered from the vehicle, disclosed
during their statements recorded under Section 67 of the
NDPS Act that the supplier of the said contraband was Hazee
Peer @ Peer Saif Din R/o Washkura, Handwara, Kupwara,
J&K.
That the NCB team accordingly visited Handwara on
15.04.2019 for follow-up action to arrest the suspect Hazee
Peer @ Peer Saif Din, who, however, could not be arrested as
he was found to have gone absconding.
That accused Bashir Ahmad, in his statement under
Section 67, identified the photographs of the heroin supplier
as Peer Saif Din S/o Peer Abdul Gani R/o Washkura,
Handwara, Kupwara, and Javed Ahmad Pir S/o Mohd. Yousif
R/o Badakot, Machipora, Handwara, Kupwara.
That the accused Javed Ahmad Pir, upon being arrested,
also disclosed during his statement under Section 67 of the
NDPS Act that the seized drugs were supplied by Peer Saif
Din @ Shah Peer @ Hazee Peer.
13 | P a g e Bail App 296/2025
That the petitioner/accused, however, did not appear
before the Investigating Agency despite issuance of notices to
him under Section 67 of the NDPS Act.
That after the completion of the investigation, complaint
was filed before the learned Trial Court against the accused
persons Bashir Ahmad Mir, Feroz Ahmed Sheikh, Waseem
Ahmed Mir and Javed Ahmed Peer on 27.05.2019 within the
stipulated time limit, but the investigation as against the
absconding accused Peer Saif Din was kept open, who did not
join the investigation till that time.
That on 15.05.2024, the petitioner/accused surrendered
before the learned Trial Court, who, as per the directions of
the Court, was lodged in District Jail, Kathua. That the
Court, on the request, granted 4 days' custody of the
petitioner/accused to the NCB for facilitation of investigation.
That the petitioner/accused, during his statement
recorded under Section 67 of the NDPS Act on 19.05.2024,
stated that he was the supplier of 60 Kgs heroin seized by the
NCB and accepted his guilt, whereupon he was formally
arrested on 19.05.2024.
That during the course of investigation, the IO received
CDR and CAF of mobile numbers of the accused persons,
which revealed their inter se communications during few days
14 | P a g e Bail App 296/2025
prior to the occurrence of 02.09.2018. That after completion
of investigation, supplementary complaint was filed against
the petitioner/accused.
7. A perusal of the record of the instant bail petition
reveals that one Satbir Singh @ Mannat was also arrested
during investigation of the case.
The accused persons Bashir Ahmad Mir, Feroz Ahmed
Sheikh, Waseem Ahmad Bhat and Paramjeet Singh came to
be formally charged for the commission of offences under
Sections 8/21, 28, 29 and 60 of the NDPS Act vide order
dated 06.01.2023, when the accused persons Javed Ahmad
Peer and Satbir Singh came to be discharged in the case.
The charge against the present petitioner, on the basis
of the supplementary complaint, came to be framed by
the learned Trial Court vide order dated 08.02.2025
under Sections 8/21, 28, 29 and 60 of the NDPS Act.
Upon pleading not guilty by the petitioner/accused, the
prosecution was directed to lead evidence in support of
the complaint.
8. A perusal of the record reveals that despite the fact that
the main complaint was filed before the learned Trial Court
against the co-accused persons on 27.05.2019, the case is
still at the stage of recording of prosecution evidence.
15 | P a g e Bail App 296/2025
9. The learned counsel for the petitioner-accused, during his
arguments, inter alia, contended that the crime number in
question came to be registered by the respondent-Bureau
upon receipt of specific information, but during the
investigation of the case, the mandatory provisions of the
NDPS Act, especially under Section 50, were observed in
breach.
He further contended during his arguments that the trial
in the case is proceeding at a snail's pace and even during
the last seven years, the recording of the evidence is not
complete at trial.
The learned counsel for the petitioner, during his
arguments and in support of his contentions that the
petitioner-accused is entitled to bail on account of delayed
trial, placed reliance on the judgment cited as Rubi Prakash
versus State of Odisha , 2023 LiveLaw (S.C.) 533 , in which
bail was granted to the appellant/accused on the ground that
despite commencement of trial, only one out of 19 witnesses
had been examined.
The learned counsel contended that the Hon‟ble Apex
Court further observed in the said case that conclusion of the
trial will thus take some more time. Paragraphs 3 and 4 of
the said judgment deserve needful mention as under:
16 | P a g e Bail App 296/2025
“3. We are informed that the trial has commenced but only
1 out of the 19 witnesses has been examined. The
conclusion of trial will, thus, take some more time.
4. As regard to the twin conditions contained in Section 37
of the NDPS Act, learned counsel for the respondent-
State has been duly heard. Thus, the 1st condition
stands complied with. So far as the 2nd condition re:
formation of opinion as to whether there are
reasonable grounds to believe that the petitioner is
not guilty, the same may not be formed at this stage
when he has already spent more than three and a
half years in custody. The prolonged incarceration,
generally militates against the most precious
fundamental right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional
liberty must override the statutory embargo created
under Section 37(1)(b)(ii) of the NDPS Act.”
10. The learned counsel for the petitioner/accused,
during his arguments, also placed reliance on another
judgment of the Hon‟ble Supreme Court cited as “ Nitish
Adhikary @ Bapan v. The State of West Bengal ” , Special
Leave to Appeal (Crl.) No. 5769/2022, in which the Hon‟ble
Court directed the release of the appellant/accused on the
ground that he had undergone custody for a period of one
year and seven months and the trial was at the preliminary
stage.
The learned counsel for the petitioner/accused, during his
arguments, also placed reliance on the judgment of this
Court in Bail App No. 21/2025 titled “Sareed Ahmad Ganie
17 | P a g e Bail App 296/2025
v. UOI and Anr.” , decided on 18.10.2025 , in which, under
similar circumstances, the Court enlarged the accused on
bail, as he had been charged on the basis of the disclosures
made by the co-accused under Section 67 of the NDPS Act, as
also on the basis of the Call Diary Reports .
11. The learned counsel for the respondent-Bureau,
however, during his arguments, placed reliance on the
judgment of the Hon‟ble Supreme Court of India cited as
Narcotics Control Bureau v. Kashif , Criminal Appeal No.
5544 of 2024 @ Special Leave Petition (Crl.) No. 12120 of
2024, and contended that it has been held by the Hon‟ble
Apex Court that in NDPS cases where the offence carries a
minimum sentence of 10 years, the accused shall generally
not be released on bail and that negation of bail is the rule
and its grant is an exception. The relevant portions of the
judgement are reproduced as hereinunder:
“8. There has been consistent and persistent view of
this Court that in the NDPS cases, where the offence
is punishable with minimum sentence of ten years,
the accused shall generally be not released on bail.
Negation of bail is the rule and its grant is an
exception. While considering the application for bail,
the court has to bear in mind the provisions of Section
37 of the NDPS Act, which are mandatory in nature.
The recording of finding as mandated in Section 37 is
a sine qua non for granting bail to the accused
involved in the offences under the said Act. Apart
from the granting opportunity of hearing to the Public
18 | P a g e Bail App 296/2025
Prosecutor, the other two conditions i.e., (i) the
satisfaction of the court that there are reasonable
grounds for believing that the accused is not guilty of
the alleged offence and that (ii) he is not likely to
commit any offence while on bail, are the cumulative
and not alternative conditions.
39. The upshot of the above discussion may be
summarized as under:
(i) The provisions of NDPS Act are required to be
interpreted keeping in mind the scheme, object and
purpose of the Act; as also the impact on the society
as a whole. It has to be interpreted literally and not
liberally, which may ultimately frustrate the object,
purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court
must bear in mind the provisions of Section 37 of the
NDPS Act which are mandatory in nature. Recording
of findings as mandated in Section 37 is sine qua non
is known for granting bail to the accused involved in
the offences under the NDPS Act.
(iii) ………..”
12. The co-accused are reported to have been bailed out
in the case. The learned trial court while denying bail to the
petitioner/accused vide its order dated 11.10.2025 has inter
alia observed that “ the charge has been framed against
the accused and the case is at the stage of prosecution
evidence. No prosecution witness has been examined so
far, so this court is not in the position to hold that there
are reasonable grounds for believing that the petitioner
is not guilty of the offences charged against him or
19 | P a g e Bail App 296/2025
that he is not likely to commit any offence while on
bail.”
13. Without making any comments as regards the merits
of the case, which are to be adjudicated at the trial of the
case, this Court is of the opinion that it may meet the ends of
justice in case the petitioner/accused is admitted to bail in
the crime number in question, subject to some reasonable
terms and conditions.
The petitioner/accused came to be formally arrested in the
case on 19.05.2024, subsequent to his surrender before the
learned Trial Court on 15.05.2024. Supplementary complaint
came to be filed by the respondent-Bureau against him on
03.10.2024, when the main complaint had already been filed
on 27.05.2019.
The co-accused in the main charge-sheet came to be
formally charged in the case on 06.01.2023. The petitioner
came to be charged in the case for the offences under the
complaint on 08.02.2025. The case is reported to be still at
the stage of recording of prosecution evidence.
The co-accused are already reported to have been bailed
out in the case. The petitioner/accused is reported to be
behind the bars since his surrender on 15.05.2024, followed
by his formal arrest in the case on 19.05.2024. So, the
20 | P a g e Bail App 296/2025
petitioner/accused is facing detention for the last more than
two years. The trial in the case is likely to take much more
time.
14. The case of the petitioner is that he has been falsely
implicated in the case on the basis of the alleged
statements/disclosures made by the co-accused, as well as
by himself, in terms of Section 67 of the NDPS Act, which are
not admissible for having not led to any recovery or
identification of any fact.
15. The learned counsel for the petitioner has mainly
relied upon the judgment of the Hon‟ble Supreme Court in
Toofan Singh’s case. The respondent-Bureau is alleging the
involvement of the petitioner on the basis of the CDR
analysis.
The learned counsel for the petitioner, during his
arguments, inter alia , contended that mere proof of
communication between the petitioner and the co-accused
during the days preceding the occurrence is not sufficient to
establish the fact in the absence of production of voice
recordings. However, the aforesaid issues can be addressed
better at the trial of the case.
It was also submitted by the learned counsel for the
petitioner/accused during his arguments that the crime
21 | P a g e Bail App 296/2025
number in question came to be registered on the basis of the
recovery made pursuant to prior specific information and
despite the fact, the mandatory provisions of the NDPS Act,
especially those contained under Section 50, were observed in
breach by the Investigating Officer.
16. The learned counsel, during his arguments, inter
alia . submitted that the investigating officer has observed the
mandatory provisions of the NDPS Act in breach, which
justifies the enlargement of the petitioner/accused.
17. Admittedly, the provisions of the NDPS Act providing
for presumption in terms of Sections 35 and 54 can be
invoked only after the prosecution is able to lead any cogent
evidence supporting the foundational facts of its case.
Intention of the legislature is that when stringent
punishments are provided under the NDPS Act, there should
be sound safe guards to ensure that innocent persons are
not harassed or unnecessarily detained by any arbitrary or
whimsical actions of the police or other authorities. The
provisions of a statute have to be interpreted inter alia with
reference to the intention of the legislature. A perusal of the
provisions of NDPS Act leads no doubt that while the
legislature wanted to curb the menace of drug addiction with
heavy hand by providing stringent punishment, it was
nevertheless conscious of the constitutional requirement that
22 | P a g e Bail App 296/2025
liberty of an individual must not be curtailed and in order to
avoid or lesson the possibility of false implication, it provided
sound procedural safe guards. The Provisions which stand
incorporated in Sections 52 clause (1) and 57 NDPS Act to be
followed after search and arrest of the accused or seizure are
mandatory in character.
The learned counsel for the petitioner during his
arguments also contended that in the facts and circumstances
of the case, especially having regard to the evidence recorded
at the trial so far, no reasonable ground appears to be made
out regarding the involvement of the petitioner/accused, in the
case
A criminal court while recording his satisfaction as to
whether there appear “reasonable grounds” of involvement of an
accused in the commission of an offense attracting the bar in
terms of provisions of Section 37 NDPS Act., has to use its
discretion in a judicious manner so that no miscarriage of
justice happens either by grant of bail or by denial of the same.
The “reasonable grounds” of involvement can be inferred
from the facts and circumstances of the case especially, the
nature of the evidence. The Court is supposed to consider the
broader probabilities to reach its supposition regarding the
existence of reasonable grounds of involvement of the accused.
23 | P a g e Bail App 296/2025
The words “reasonable grounds” cannot be read to mean
proved as used in „ Bharatiya Sakshya Adhiniyam’ . Such an
interpretation would in my opinion set at naught the power
vested in a court to grant bail pending trial.
The expression “reasonable grounds” would obviously
mean something more than mere suspicion and conjectures
and something less than proof. It would necessarily mean such
grounds or material that would prima facie enable a person of
ordinary prudence to believe that the accused is or is not
guilty.
It is no doubt true that the object of the legislation of such
disabling provisions is to prevent the offenders from
immediately granting bail in heinous offences. In this view of
the matter, the court is required to examine the material placed
before it and then to arrive at a conclusion that there exist
“reasonable grounds” to believe that accused is guilty or not
guilty
The “reasonable grounds” would vary from case to case
and from one accused to another. What may be reasonable in
one case may not be so in another and therefore the words
“reasonable grounds” cannot, on account of a discretion vested
in the court, be put into a straight-jacket. Each case would
have to be dealt with and examined on its own facts and
24 | P a g e Bail App 296/2025
decided keeping in view the mandate of law. The consideration
at the time of taking up of the bail application for disposal is
different from the consideration adopted at the end of the trial
for holding an accused guilty or not guilty. In considering an
application for bail, court is not required to conduct a
preliminary trial. The Courts while deciding bail applications
will be traversing beyond their ambit and would be exceeding
their limit of functions if they engage themselves in discovering
the guilt or innocence of the accused which can only be
determined at the trial stage. The courts should not go at a
tangent in order to find out the possible excuses for grant bail.
Whether there are “reasonable grounds” or not is the question
which must be decided judicially, that is to say there should be
some tangible evidence on which the Court might come to the
conclusion that if unrebutted, the accused might be convicted.
Whether there are reasonable grounds for believing that a
person is guilty of such an offence depends on what evidence is
offered by the prosecution to the charge against him.
In order to come to the conclusion, that a person is guilty,
the Court must consider the evidence which if unrebutted may
lead to conclusion that the charge against him stands proved
and cannot unjustifiably hold that there are “reasonable
grounds” for believing that he is guilty. It is a settled position of
law that the real question whether there are reasonable grounds
25 | P a g e Bail App 296/2025
for believing that a person is guilty of offences attracting bar
under Section 37 NDPS Act, depends upon what evidence is
offered by the prosecution to prove the charge against him.
While reaching such conclusion, the Court must consider the
nature and character of evidence against him.
The petitioner/accused is reported to be a senior citizen,
being more than 60 years of age, and is not keeping good
health. He is reported to be suffering from a cardiac problem
and has already been implanted with a stent.
18. Apart from the statutory bar, if any, two paramount
considerations viz. likelihood of accused fleeing from justice
and tampering with the prosecution evidence relate to the
ensuring of a fair trial of the case in a court of law. It is
essential that due and proper appreciation and weightage
should be bestowed on these factors apart from others. The
grant of bail or the denial of the same falls within the purview
of the judicial discretion meant to be exercised on sound legal
principles upon the logical interpretation and application of
the same in the given facts and circumstances of the case.
The necessary arrests subject to the law of bails as provided
under the Code, BNSS and the provisions of different special
Legislations are permissible under the Constitution of our
Country by way of a reasonable exception to the fundamental
right to liberty guaranteed under Article 21 of the
26 | P a g e Bail App 296/2025
Constitution and the mandate of the provisions of Article 22
of the Constitution is meant to be followed upon making any
such necessary arrests.
19. In State of Rajasthan Jaipur Vs. Balchand AIR
1977 S.C. 2447, t he Hon‟ble Apex Court has held, “basic
rule may perhaps be tersely put as bail not jail, except where
there are circumstances of fleeing from justice or thwarting
the course of justice or creating other troubles in the shape of
repeating offences or intimidating the witnesses and the like,
by the petitioner who seeks enlargement on bail from the
court.
20. No single rule or a golden litmus test is applicable for
consideration of a bail application and instead some material
principles/guidelines are needed to be kept in mind by the
Courts and the Magistrates for consideration of a bail
application especially including:
i.
The judicial discretion must be exercised with the
utmost care and circumspection;
ii. That the Court must duly consider the nature and the
circumstances of the case;
iii. Reasonable apprehension of the witnesses being
tampered;
iv. Investigation being hampered or
v.
The judicial process being impeded or subverted.
vi. The liberty of an individual must be balanced against
the larger interests of the society and the State.
27 | P a g e Bail App 296/2025
vii. The court must weigh in the judicial scales, pros
and cons varying from case to case.
viii. Grant of bail quo an offence punishable with
death or imprisonment for life is an exception and not
the rule;
ix. The court at this stage is not conducting a preliminary
trial but only seeking whether there is a case to go for
trial;
x. The nature of the charge is the vital factor, the nature
of evidence is also pertinent, the punishment to which
the party may be liable also bears upon the matter
and the likelihood of the applicant interfering with the
witnesses or otherwise polluting the course or justice,
has also a bearing on the matter.
xi. The facts and circumstances of the case play a
predominant role.
21. The Hon‟ble Apex Court in Gur Bakash Singh Sibbia
Vs. State of Punjab AIR 1980 S.C. 1632 , referred to the
following extract from the American Jurisprudence having
bearing on the subject of bail,
“where the grant of bail lies within discretion of the
court, granting or denial is regulated to a large extent,
by the facts and circumstances of each particular
case. Since the object of detention
order/imprisonment of the accused is to secure his
appearance and submission to jurisdiction and the
judgment of the court, the preliminary enquiry is
whether a recognizance or bond would yield that end.
It is thus clear that the question whether to grant bail
or not, depends for its answer upon a Variety of
circumstances, the cumulative effect of which must
enter into the judicial verdict. Any one single
circumstance cannot be treated as of universal
validity for justifying the grant or refusal of bail”.
28 | P a g e Bail App 296/2025
22. It has been laid down by the Hon‟ble Supreme
Court in Sanjay Chandra vs. Central Bureau of
Investigation AIR 2012 SC 830 at Para 14 of its Judgment
as under:-
14) “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 preventive.
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 beings 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
demands that some un-convicted 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
29 | P a g e Bail App 296/2025
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 .”
23. This Court in its opinion is fully fortified with the
authoritative law laid down by the Hon‟ble Apex Court cited
as Sanjay Chandra Vs. Central Bureau of Investigation,
(2012) 1 SCC 40 in which the bail was granted to the
appellant who was involved in economic offences. It is
profitable to reproduce the relevant paras 24 and 25 of the
judgment for ready reference:-
“24. In the instant case, as we have already noticed
that the “pointing finger of accusation” against the
appellants is “the seriousness of the charge”. The
offences alleged are economic offences which have
resulted in loss to the State exchequer. Though, they
contend that there is possibility of the appellants
tampering with the witnesses, they have not placed
any material in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of the
relevant considerations while considering bail
applications but that is not the only test or the factor:
the other factor that also requires to be taken note of
is the punishment that could be imposed after trial
and conviction, both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the former
is the only test, we would not be balancing the
constitutional rights but rather “recalibrating of the
scales of justice.”
30 | P a g e Bail App 296/2025
“25. The provisions of Cr.P.C . confer discretionary
jurisdiction on criminal courts to grant bail to accused
pending trial or in appeal against convictions, since
the jurisdiction is discretionary, it has to be exercised
with great care and caution by balancing the valuable
right of liberty of an individual and the interest of the
society in general. In our view, the reasoning adopted
by the learned District Judge, which is affirmed by
the High Court, in our opinion, is a denial of the whole
basis of our system of law and normal rule of bail
system. It transcends respect for the requirement that
a man shall be considered innocent until he is found
guilty. If such power is recognized, then it may lead to
chaotic situation and would jeopardize the personal
liberty of an individual.”
24. In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4
SCC 280 , the Hon‟ble Apex Court has laid down the special
factors for taking into consideration while exercising the bail
jurisdiction and the relevant para 8 of the said judgment is
reproduced as hereunder for ready reference:-
“8. The jurisdiction to grant bail has to be exercised
on the basis of well-settled principles having regard
to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the court
has to keep in mind the nature of accusations, the
nature of the evidence in support thereof, the severity
of the punishment which conviction will entail, the
character, behaviour, means and standing of the
accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with,
31 | P a g e Bail App 296/2025
the larger interests of the public or State and similar
other considerations. It has also to be kept in mind
that for the purposes of granting the bail the
legislature has used the words “reasonable grounds
for believing” instead of “the evidence” which means
the court dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a genuine
case against the accused and that the prosecution
will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage,
to have the evidence establishing the guilt of the
accused beyond reasonable doubt.”
25. The observations of the Hon‟ble Apex Court laid
down in State of U.P. v. Amarmani Tripathi, (2005) 8 SCC
21 at para 18 of the judgment also deserve a needful
mention:
“18. It is well settled that the matters to be
considered in an application for bail are (i) whether
there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the charge; (iii) severity of
the punishment in the event of conviction; (iv) danger
of the accused absconding or fleeing, if released on
bail; (v) character, behaviour, means, position and
standing of the accused; (vi) likelihood of the offence
being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of
course, of justice being thwarted by grant of bail
[see Prahlad Singh Bhati v. NCT, Delhi and
Gurcharan Singh v. State (Delhi Admn.)]. While a
vague allegation that the accused may tamper with
the evidence or witnesses may not be a ground to
refuse bail, if the accused is of such character that
his mere presence at large would intimidate the
witnesses or if there is material to show that he will
32 | P a g e Bail App 296/2025
use his liberty to subvert justice or tamper with the
evidence, then bail will be refused.”
26. The Hon‟ble Apex Court in Sanjay Chandra‟s case
cited supra has inter alia held at para 40 of the judgment,
“the grant or refusal to grant bail lies within the discretion of
the Court. The grant or denial is regulated, to a large extent,
by the facts and circumstances of each particular case. But
at the same time, right to bail is not to be denied merely
because of the sentiments of the community against the
accused. The primary purposes of bail in a criminal case are
to relieve the accused of imprisonment, to relieve the State of
the burden of keeping him, pending the trial, and at the same
time, to keep the accused constructively in the custody of the
Court, whether before or after conviction, to assure that he
will submit to the jurisdiction of the Court and be in
attendance thereon, whenever his presence is required.”
27. The Hon‟ble Apex Court in its judgments cited as
Siddharam Satlingappa Mhetre Vs. State of Maharastra
decided on 02/12/2010, AIR 2011 SC 312 and Sushila
Aggarwal and others vs. State (NCT of Delhi) and Another
decided on January 29, 2020 by a larger bench 2020 SC
online 98 , has interpreted law even on the subject of
anticipatory bail with a very wide outlook and while
interpreting the concept of liberty guaranteed under Article
33 | P a g e Bail App 296/2025
21 of the Constitution of our country in a flexible and broader
sense. It has been inter alia observed by the Hon‟ble Apex
Court in the aforesaid judgments that the exact role of the
accused must be properly comprehended before arrest is
made. “The inner urge for freedom is a natural phenomenon
of every human being. Respect for life and property is not
merely a norm or a policy of the state but an essential
requirement of any civilized society. Just as the liberty is
precious to an individual, so is the society‟s interest in
maintenance of peace, law and order.”
28. Admittedly, the offences charged against the
petitioner/accused are hit by the provisions of Section 37
of the NDPS Act, which are reproduced hereinafter for
ready reference:
“37. Offences to be cognizable and non-
bailable.—
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974),—
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under Section 19 or Section 24 or Section
27A and also for offences involving commercial
quantity shall be released on bail or on his own bond
unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such release,
and
34 | P a g e Bail App 296/2025
(ii) where the Public Prosecutor opposes the
application, the Court is satisfied that there are
reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any
offence while on bail.”
29. Thus Section 37 of the NDPS Act clearly provides
that in cases involving offences relating to possession of
commercial quantity of contraband substances, in addition to
the restrictions imposed by the Code of Criminal Procedure
for grant of bail, certain other conditions have been imposed
on the power of the Court to grant bail. These conditions
include a prior notice to be issued to the Public Prosecutor so
as to give him an opportunity to oppose the bail application.
Further, for granting bail to the accused, the Court has to be
satisfied that there are reasonable grounds for believing that
the person seeking bail is not guilty of such offence and that
he is not likely to commit any offence while on bail.
30. Admittedly, the Hon‟ble Supreme Court has in the
case of Narcotics Control Bureau vs. Mohit Aggarwal , 2022
Live Law (SC) 613, after relying upon its earlier judgments on
the subject, observed as under:
“14. To sum up, the expression “reasonable grounds”
used in clause (b) of Sub-Section (1) of Section 37
would mean credible, plausible and grounds for the
Court to believe that the accused person is not guilty
35 | P a g e Bail App 296/2025
of the alleged offence. For arriving at any such
conclusion, such facts and circumstances must exist
in a case that can persuade the Court to believe that
the accused person would not have committed such
an offence. Dove-tailed with the aforesaid satisfaction
is an additional consideration that the accused
person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an
application for bail in the context of the Section 37 of
the Act, the Court is not required to record a finding
that the accused person is not guilty. The Court is
also not expected to weigh the evidence for arriving at
a finding as to whether the accused has committed
an offence under the NDPS Act or not. The entire
exercise that the Court is expected to undertake at
this stage is for the limited purpose of releasing him
on bail. Thus, the focus is on the availability of
reasonable grounds for believing that the accused is
not guilty of the offences that he has been charged
with and he is unlikely to commit an offence under
the Act while on bail.”
31. For the foregoing discussion, and without
commenting on the merits of the case which obviously shall
be the subject matter of final disposal of the trial case,
petitioner-accused is admitted to bail in the Crime No.
11/2018 dated 02.09.2018 (File No.19/2024 dated
03.10.2024) of Narcotic Control Bureau (NCB) Jammu Zonal
Unit under Section 8/21, 28,29 & 60 of the NDPS Act subject
to his furnishing surety and personal bonds to the tune of Rs.
1,00,000/- each (surety bond Rs. 1,00,000/- to be furnished
by two sureties from amongst the near relatives of the
36 | P a g e Bail App 296/2025
petitioner/accused, each liable to the extent of Rs. 50,000/-)
respectively to the satisfaction of the learned Registrar
Judicial, Jammu and the Superintendent of jail concerned,
for assuring the fulfillment of the following conditions:
i. Petitioner-accused shall remain punctual at the trial
of the case.
ii. The Petitioner shall not directly or indirectly make
any inducement, threat, or compromise to any of
unexamined prosecution witnesses so as to dissuade
them from making their factual averments at the
trial.
iii. Petitioner shall not leave the limits of UT of J&K
without the prior permission of the learned trial
court.
iv. Petitioner shall not repeat the commission of crime.
32. In case the requisite surety bonds are furnished to
the satisfaction of the learned Registrar Judicial Jammu and
duly attested, a formal release order shall be issued by
learned Registrar Judicial Jammu directing the release of the
petitioner-accused from the place of his lodgment in the
Crime Number in question, subject to petitioner's furnishing
37 | P a g e Bail App 296/2025
of personal bond in the amount of Rs. 1,00,000/- to the
satisfaction of the Superintendent of jail concerned.
33. Learned trial court shall be competent to proceed
against the petitioner-accused in terms of provisions of
Sections 491 and 492 of the BNSS corresponding to Sections
446, 446-A of the Code in the event of violation of any bail
conditions.
34. It is reiterated that references made to the rival
pleadings and the arguments of the learned counsel for the
parties shall not be construed as any interference with or
prejudging of the merits of the case as the facto-legal
discussion under this order has been made for the limited
purpose of disposal of this bail petition.
35. Disposed of.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
th
8 September, 2026
“Mubashir”
i. Whether the judgment is speaking: Yes
ii. Whether the judgment is reportable: Yes
38 | P a g e Bail App 296/2025