GURJIT SINGH vs NARCOTICS CONTROL BUREAU TH ITS ZONAL DIRECTOR, JAMMU

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU





[Through Virtual Mode]


Bail App No. 250/2025


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Reserved On: 5 of March, 2026.
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Pronounced On: 11 of March, 2026.
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Uploaded On: 11 of March, 2026.

Whether the operative part or
full Judgment is pronounced: Full.



Gurjit Singh , Age: 38 Years
S/O Balbir Singh
R/O Digiana Ashram near Govt. High School,
Digiana, Jammu
Through Mother Sandeep Kaur, Age: 60 Years.
… Petitioner(s)

Through: -
Mr Prince Khanna, Advocate with
Mr Aashray Ahand, Advocate.

V/s

Narcotics Control Bureau, Jammu Zone,
Through its Zonal Director.
… Respondents
Through: -
Mr Vishal Sharma, DSGI with
Mr Eishaan Dadhichi, CGSC.

CORAM: HON’BLE MR JUSTICE SHAHZAD AZEEM, JUDGE.


(JUDGMENT)



01. The Petitioner has invoked the jurisdiction of this Court under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita [BNSS] for his
enlargement on bail for allegedly commission of offences punishable under
Sections 8, 21, 29 and 60 of the Narcotic Drugs and Psychotropic
Substances Act [“NDPS Act”].
02. The Petitioner and co-accused were sent up for trial for the
commission of aforementioned offences by the Narcotics Control Bureau
[“NCB”], Jammu and are as such facing trial before the Court of learned
Special Judge (NDPS cases), Jammu [“the Trial Court”].

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03. The Prosecution case, in brief, is that on August 06, 2018,
NCB, Jammu alleged to have received a written complaint from the Station
House Officer (SHO), Bahu Fort, Jammu, that they have received an
information about transportation of narcotics consignment in a truck
bearing registration No. JK02AD-3965. Accordingly, a team of NCB,
Jammu, in collaboration with the police team of Police Station Bahu Fort,
laid a Naka at Rajiv Nagar Chowk, Narwal Bye-Pass, Jammu, on August
06, 2018 and at around 1300 hours, the Truck in question was intercepted.
On enquiry, the driver and conductor have disclosed their identities as
Gurjit Singh (Petitioner herein) and Ravi Kumar (co-accused), respectively.
During search, the accused said to have made a disclosure statement that the
consignment of Heroin has been concealed in a false cavity of the cabin at
the rear side of the truck. Consequently, 51 packets of Heroin , weighing
52.523 kilograms, including packaging material, alleged to have been
recovered and seized. The Petitioner also alleged to have made a statement
under Section 67 of the NDPS Act, whereby he had disclosed the names of
other kingpins involved in the drug trafficking.
04. Accordingly, on completion of investigation, a complaint was
filed by the NCB, Jammu, against the Petitioner and co-accused, which led
to framing of formal charges vide Order dated May 03, 2019 for the
commission of offences punishable under Sections 8, 21, 29, and 60 of the
NDPS Act.
05. It is noteworthy that in order to bring home the charge against
the accused, the Prosecution has cited as many as 13 witnesses in the
witness calendar, out of which, by now, 10 witnesses have been examined.
06. The Petitioner had moved an application seeking his
enlargement on bail before the Trial Court, however, same was dismissed
by Order dated June 25, 2025, mainly on the ground of statutory bar of
Section 37 of the NDPS Act and seizure of huge commercial quantity of
Heroin , which, as per the Trial Court, was having more than Rs. 250 crores

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market value, coupled with the past involvement of the Petitioner in
commission of such type offences.
07. The Petitioner, by virtue of the instant Petition, is seeking bail,
mainly on the ground that the Prosecution has examined only 06 witnesses,
out of 14 cited witnesses and further that the Petitioner is behind the bars
for more than seven years. Further ground taken by the Petitioner is that all
the witnesses examined so far have made totally contradictory statements
on the point of recovery of narcotics.
08. The star ground taken by the Petitioner is that he has
undergone detention period of more than one-third of the maximum
punishment specified for the offences and, thus, he being first-time offender
is entitled to bail in terms of first proviso to Section 479 of BNSS.
09. In opposition, the Respondents have filed the Objections and
note whereof shall be taken hereinafter at appropriate stage.
10. Heard learned Counsel for the parties and also perused the
record.
11. Indisputably, the Petitioner was sent up for trial for allegedly
trafficking in huge commercial quantity of Heroin and, according to the
Trial Court, the market value of the seized contraband is more than Rs. 250
crores. Therefore, it goes without saying that the huge commercial quantity
of Heroin came to be recovered from the possession of the Petitioner and
the Trial Court, after drawing prima facie satisfaction, has drawn up formal
charges against the Petitioner for the commission of offences punishable
under Sections 8, 21, 29 and 60 of the NDPS Act. It is equally noteworthy
that by now, out of the 13 enlisted witnesses, the Prosecution has examined
10 witnesses, and, now, only three witnesses are to be examined.
12. In ‘Narcotics Control Bureau V. Kashif, 2025 (2) Supreme
268’ , the Hon’ble Supreme Court, while dealing with the compliance of the
mandate of Section 37 of the NDPS Act, observed that, where the offence is

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punishable with minimum sentence of 10 years, the accused shall generally
be not released on bail and, in this regard, ‘negation of bail is the rule and
its grant is an exception’ . It has been further held that, 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. However, the
recording of finding, as mandated in Section 37, is the sine qua non for
granting bail to the accused involved in the offence under the said Act.
Similar view has been taken by the Hon’ble Supreme Court in ‘State of
Meghalaya V. Lalrintluanga Sailo & Anr., 2024 (6) Supreme 568’ .
13. The Hon’ble Supreme Court in ‘Union of India V. Vigin K.
Varghese, 2025 SCC Online (SC) 2440’ , observed thus:
“17. The High Court then, on the strength of those
premises, recorded a finding that there exist reasonable grounds
to believe that the applicant is not guilty of the alleged offence,
treating prolonged incarceration and likely delay as the
justification for bail. Such a finding is not a casual observation.
It is the statutory threshold under Section 37(1)(b)(ii), which
would disentitle the discretionary relief and grant of bail, must
necessarily rest on careful appraisal of the material available. A
conclusion of this nature, if returned without addressing the
prosecution's assertions of subjective control and antecedent
involvement, risks trenching upon appreciation of evidence,
which would be in the domain of trial court at first instance.”

From the above-stated dictum of law, it is pellucid that Section

37 of the NDPS Act is mandatory and when same is pitted against the plea
of prolonged incarceration and likely delay of the trial, the conditions
contained in Section 37 of the NDPS Act have the precedence.
14. Now, turning to the case on hand, the Petitioner did not
specifically indicate as to how the evidence recorded so far does not
connect him with the alleged commission of offence. Therefore, mere
wholesale assertion is not sufficient to rebut the presumption arrived by the
Trial Court, while framing the charges.

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15. It is important to note that in ‘Narcotics Bureau V. Mohit
Agarwal, (2022) 18 SCC 374’ , a three-judge Bench of the Hon’ble
Supreme Court held that the length of the period of custody or that charge
sheet had been filed or even that the trial has not commenced, by
themselves, are not considerations that can be treated as persuasive grounds
to grant bail under Section 37 of the NDPS Act.
16. In ‘State of Karnataka V. Shri Darshan, (2025) SCC Online
SC 1702’ , which is a locus classicus on the subject, the Hon’ble Supreme
Court observed that, while considering the bail, only the prima facie
assessment of the material is warranted and the Court cannot conduct a
mini-trial or record conclusion that can influence the outcome of the trial. In
Shri Darshan’s case ( supra) , while citing the Judgement passed in ‘Ash
Mohammad V. Shiv Raj Singh @ Lalla Bahu & Anr., (2012) 9 SCC
446’ , it has been, inter alia , held that the period of custody, while relevant,
must be weighted against the totality of circumstances, including the nature
of crime and criminal antecedents. It was further held that in serious
offenses, the gravity of the offense and its impact on society must weigh
heavily with the Court and such cases must have to be considered with
greater care and circumspection
17. In view of above, it is made abundantly clear that heinous
crimes punishable with minimum sentence of 10 years, the accused shall
generally be not released on bail, and thus, he cannot seek bail as a matter
of right merely on length of incarceration, unless countervailing
circumstances have been shown to the satisfaction of the Court.
18. The Petitioner, in the case on hand, except making wholesale
assertions, did not put forth any circumstance, much less from the evidence
recorded so far, to show that the Prosecution witnesses did not support the
allegations on the basis of which the charges have been framed against
Petitioner or that the evidence is of such fragile nature that imminently
leads to the presumption of innocence in favor of the Petitioner.

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19. Now, turning to the second limb of argument that the
Petitioner is a first-time offender and has undergone detention for the period
extending up to one-third of the maximum period of imprisonment
specified for the offences for which he has been charged, therefore, is
entitled to bail. In this regard, inter alia , charge against the Petitioner is
framed under Section 21 (c) of the NDPS Act that carries rigorous
imprisonment for a term which would not be less than ten years, but which
may extend to twenty years. To buttress this point, the learned Counsel for
the Petitioner went onto submit that the Petitioner has already undergone
detention for more than seven years, therefore, he has acquired an
indefeasible right of enlargement on bail in terms of first proviso to Section
479 of the BNSS.
20. Per contra , Mr Vishal Sharma, the learned DSGI, submitted
that the Petitioner is not the first-time offender, as previously he was also
involved in the commission of offence under Section 8/ 15 of the NDPS
Act, therefore he is not entitled to the benefit of first proviso to Section 479
of BNSS. The learned Counsel further went onto submit that under second
proviso to Section 479 of BNSS, the Court may continue detention of such
person for a longer period than one-third or one-half of the undergone
detention period, as such, keeping in view the gravity of offence and past
antecedents of the Petitioner, he is not entitled to the concession of bail in
terms of Section 479 of BNSS.
21. Section 479 of BNSS deals with maximum period for which an
under-trial prisoner can be detained and the underlying object of this
Section aligns with the right of the accused to have speedy trial. However,
Section 479 of BNSS creates two categories of under-trial prisoners, i.e., (i)
first-time offenders, who are entitled to be released on bail after undergone
one-third of the maximum punishment period; and (ii) the second category
is of those accused who are entitled to be released on bail after one-half of
the maximum punishment period is undergone. The second proviso further

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states that the Court may, for the reasons to be recorded and after hearing
the Public Prosecutor, order the continued detention of such person beyond
one-half of said period or release him on bail bond instead of bond.
22. Now, the question arises as to whether the second proviso,
whereby the Court has the discretion to order the continued detention longer
than one-half of the period undergone, also applies to first proviso to
Section 479 of BNSS.
23. When the statutory provision has proviso(s) prescribing
different time periods for release of an accused and one proviso preserves
the discretion of the Court, then well established principle of statutory
interpretation applies to harmonize the both. A proviso is normally meant to
qualify, carve out or explain the main provision and not to destroy it.
24. The Hon’ble Supreme Court in ‘S. Sundaram Pillai v. V. R.
Pattabiraman, AIR 1985 Supreme Court 582’ , held that a proviso may;
qualify the main enactment or create an exception from the main provision.
25. Therefore, proviso cannot be read in isolation and must be
interpreted harmoniously with the main Section and with each other also,
thus, interpretation of one proviso in a way that renders the other
meaningless is to be avoided.
26. Under proviso first of Section 479 of BNSS, an accused, after
completing the period of statutory threshold, becomes entitled to approach
the Court for his release on bail, whereas, the second proviso retains the
discretion of the Court to extend the threshold period. In this view of the
matter, the interpretation of both the provisos, on harmonious construction,
leads to the conclusion that release is not absolute, it remains subject to
judicial discretion which has been preserved by second proviso . As a
necessary concomitant to harmonious construction, upon completion of the
threshold period, the accused only gets a right to move before the Court for

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his release on bail, whereas, the Court retains its discretion to extend the
period, though in exceptional circumstances.
27. Therefore, both the provisos must be read harmoniously and
not in isolation, when the first part of the provision makes the Court’s
discretion in another part meaningless, such interpretation is impermissible
and further proviso cannot be interpreted independently, so as to nullify the
main provision. Accordingly, if one proviso gives a threshold benefit, the
other proviso retains the discretion with the Court, as such, both must be
read together, so that the Court still retains the power to assess
circumstances. Let us assume if on completion of one one-third of the
maximum period of imprisonment, there will be an automatic release solely
on completion of threshold period, it may allow release even in serious and
grave offences, therefore, such an interpretation would lead to absurdity and
will take away the discretionary power of the Court, which is neither
intended by the Legislature nor is discernible from the reading of Section
479 of BNSS.
28. Therefore, where the Statute prescribes a threshold time, but
another part retains judicial discretion, the correct interpretation is that the
threshold creates eligibility for consideration, but not automatic entitlement.
If the strict automatic release were intended in the one-third category, the
Statute would have expressly prohibited judicial discretion, which it does
not. Even in cases where an accused becomes eligible for release after
completion of one-third of maximum sentence, the Court may still examine
the facts of the case, hear the Public Prosecutor and record reasons if
detention needs to be continued.
29. From the above analysis, it is conspicuous that sub-section (1)
of Section 479 of BNSS is to be read with first proviso , which provides the
period of imprisonment after completion of which the under trial is entitled
to get the benefit of Section 479 of BNSS. Furthermore, the second proviso
is also applicable to sub-Section (1) of Section 479. Therefore, both the

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provisos being integral part of the main provision of Section 479 of BNSS,
thus, are to be read and interpreted conjointly and harmoniously, thereby
preserving the discretion of the Court in extending the one-third period of
detention, as envisaged under the first proviso to Section 479 of BNSS.
30. As a corollary to the above discussion, the argument that the
Petitioner is entitled to indefeasible right of bail as he has undergone
detention for a period extending upto one-third of the maximum period of
imprisonment specified for the offences he has been charged for and further
that, in such cases, the discretion does not lie with the Court to order the
continued detention beyond the said period is not legally tenable. The
discretion to order the continued detention beyond the maximum period of
one-third is retained with the Court and can be ordered for reasons to be
recorded and after hearing the Public Prosecutor.
31. Now, turning to the case on hand, the contraband was seized
from the possession of the Petitioner and he has not been able to point out
the existence of any fact or circumstance that is sufficient to justify
recording of a finding that he is not guilty of the offences charged and
hence the rigors of Section 37 of the NDPS Act are fully applicable. In
absence of any countervailing circumstance leaning towards the innocence
of the Petitioner, the Petitioner cannot draw the benefit of proviso to
Section 479 of BNSS only on the ground of prolonged trial or incarceration,
as has been held in Shri Darshan’s case ( supra ) that mere prospect of a
prolonged trial cannot, by itself, outweigh the gravity of the offence, the
incriminating material gathered during investigation or the likelihood of
tampering the witnesses.
32. It has been further seen that the trial is at the verge of
completion as only three witnesses are to be recorded and the Petitioner has
been allegedly found in the possession of huge quantity of Heroin having
market value of more than Rs. 250 crores and also found involved earlier in
offence punishable under Section 8 (15) of the NDPS Act, therefore, on this

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count also, he is not entitled to the benevolence of bail, in view of the
nature and gravity of offence and his antecedent.
33. For the foregoing reasons, the instant bail application is
dismissed . However, keeping in view the period of incarceration of the
Petitioner, the Trial Court shall record the remaining witnesses in one
calendar and thereafter shall conclude the trial within two months
positively.
( SHAHZAD AZEEM)
JUDGE
SRINAGAR
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March 11 , 2026
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document