Jammu & Kashmir High Court – Srinagar Bench
2026:Jklhc-Sgr vs Union Territory Of J&K & Ors on 6 June, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
2026:JKLHC-SGR:1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail Application No. 146/2023
Pronounced on: 06.06.2025
Muneer Ahmad Khan
...Appellant/Petitioner(s)
Through: Mr. Arzaan Ahmad Dar, Advocate.
Vs.
Union Territory of J&K & Ors.
...Respondent(s)
Through: Mr. Satinder Singh Kalla, AAG.
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. Heard learned counsel for both the sides.
2. Perused the pleadings as well as scanned record of
the criminal case summoned from the court below.
3. The petitioner has approached this Court with a
petition under section 439 of Code of Criminal Procedure,
1973 invoking the jurisdiction of this Court in the matter
of grant of bail in a criminal case in which the petitioner is
one of accused persons.
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4. The petitioner has suffered rejection of his bail plea
from the trial court of learned Principal Sessions Judge,
Kupwara, which, vide an order dated 27.06.2023, came to
reject not only the bail application of the petitioner but
also that of other three co-accused by said common order
dated 27.06.2023.
5. On 11.07.2022 the Police of Police Station, Tregam
is said to have set up ‘Naka-check’ at Chaeshma, Tregam.
At said ‘Naka-check’ a motorcyclist riding a motor cycle
bearing registration No.PB10EX-4382 on its way from
Kupwara to Kralpora when signaled to halt is alleged to
have tried to escape only to be got caught alongwith pillion
rider by the Naka Party. The motorcyclist came to be
identified as Asif Bashir upon whose personal search
Brown-Sugar narcotic (8-10 grams) is alleged to have been
recovered, whereas the pillion rider identified as Mehtab
Ahmad Malik was found to be possessing or carrying no
such contraband.
6. This incident resulted in registration of an FIR No.
38 of 2022 dated 11.07.2022 for commission of offence
under sections 8(a)/21 of Narcotic Drugs and Psychotropic
Substances (NDPS) Act, 1985.
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7. The investigation of said FIR No. 38 of 2022
proceeded purportedly on the inputs of Asif Bashir, the
prime accused arrested on 11.07.2022 which led to an
alleged disclosure that the alleged contraband item was
purchased by him (Asif Bashir) from the petitioner-Muneer
Ahmad Khan. Consequently, the arrest of the petitioner
came to take place on 24.07.2022 and ever since then the
petitioner came to be in continuing custody, firstly during
the investigation and later on post commencement of the
trial of the criminal case.
8. The arrest and interrogation of the petitioner is said
to have led to an alleged disclosure by the petitioner that
he had got an alleged contraband item from one Idress
Ahmad Khan on a deal of ₹40,000/- against which
₹30,000/- stood paid. However, no alleged contraband
item was recovered from the petitioner.
9. Idress Ahmad Khan came to be arrested as an
accused No.3 on 31.07.2022 and from him an alleged
recovery of 2 grams of brown sugar is said to have taken
place.
10. Acting upon Idrees Ahmad Khan’s interrogative
inputs, one Tahir Ahmad Sofi came to be arrested on
04.08.2022 as an accused No.4 found with alleged
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possession of 5 grams of brown sugar and cash of
₹63,910/-.
11. This aforesaid sequence of events attended with the
investigation by the Police Station, Tregam resulted in
preparation and presentation of a Final Police Report
(Challan) No. 32 dated 10.11.2022 booking four above
named accused persons for alleged commission of
offences under sections 8/21, 29, 27-A of NDPS Act, 1985
to undergo trial before the court of Principal Sessions
Judge, Kupwara on 29.11.2022.
12. During the course of investigation of FIR No.38 of
2022 itself, all the four accused persons had come forward
with four individual bail applications/petitions filed before
the court of learned Principal Sessions Judge, Kupwara for
seeking bail by reference to their arrest in FIR No.38 of
2022.
13. The petitioner came to file his bail petition on file
No.48-M on 27.07.2022. The prime accused-Asif Bashir
Wani had filed his bail petition earlier to the bail petition
filed by the petitioner-Muneer Ahmad Khan, whereas two
other accused persons namely Mohammad Idress Khan
and Tahir Ahmad Sofi came to file their respective bail
petitions later.
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14. During the pendency of the said four bail petitions, a
Final Police Report (Challan) No.32 of 2022 had come to
be presented before the court of learned Principal Sessions
Judge, Kupwara and, as such, the adjudication of the said
four bail petitions by the court of learned Principal
Sessions Judge, Kupwara came to take place in light of
the facts and circumstances as cited by the Police Station,
Tregam in its Final Police Report (Challan) No.32 of 2022
whereby four accused were presented to stand trial.
15. By virtue of a common order dated 27.06.2022, all
the four bail petitions came to be rejected by the court of
learned Principal Sessions Judge, Kupwara constraining
the petitioner to petition this Court for earning bail.
16. The petitioner in his present bail petition has come
up pleading that his continuing custody as an undertrial
is antithesis to the law of bail in the sense that without
any culpability attending him he has come to be
implicated in the case just by a mere alleged interrogative
and confessional statement of the prime accused Asif
Bashir the alleged motorcyclist from whose alleged
possession the contraband in the form of Brown Sugar
came to be recovered and thereafter the Police came up
with an alleged linkage of Asif Bashir with the petitioner
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and from the petitioner to co-accused Idrees Ahmad Khan
and from Idrees Ahmad Khan to co-accused Tahir Ahmad
Sofi.
17. The court of learned Principal Sessions Judge,
Kupwara, while denying bail to the petitioner as well as to
the other three accused persons, has drawn the common
order dated 27.06.2023 without adverting individual wise
case study for the purpose of evaluation as to whether the
prosecution case against all the accused persons is
painted with same color and brush or with different color
and brush, and this is where this court finds that the
court of learned Principal Sessions Judge, Kupwara fell in
error of approach and adjudication. A trial court dealing
with bunch of bail applications in a given criminal case is
well-advised to deal with and decide bail applications by
individual orders rather than by a common order.
18. Going by the understanding of the court of learned
Principal Sessions Judge, Kupwara, it is worth observing
its premise that if the prime accused Asif Bashir comes to
be found guilty on the basis of the evidence led in the
case, then all the three co-accused persons/undertrials
per- force are also to be adjudged guilty. Said premise
cannot be a principle on which an adjudication of a
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criminal case involving number of accused persons is
undertaken particularly when section 34 IPC is not in
play.
19. Role of each and every accused person is brought
under a scanner by reference to the prosecution evidence
read with evidence in defense, if any, and then a judgment
is exercised by the trial court as to whether accusations by
the prosecution against accused persons fasten culpability
upon all the accused persons or only one or some of them
in the context of the offences charged against them
individually.
20. In dealing with the matter of consideration of bail
application of accused person under the regime of Narcotic
Drugs and Psychotropic Substances (NDPS) Act, 1985,
there is an operating mandate in section 37 of the said Act
as to how exercise of discretion is supposed to take place
in the matter of granting of bail to an accused/undertrial
person booked for a commission of offence under the
provisions of Narcotic Drugs and Psychotropic Substances
(NDPS) Act, 1985.
21. A court dealing with a bail application under
Narcotic Drugs and Psychotropic Substances (NDPS) Act,
1985, has to stay ever cautious that even for the sake of
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formulating an adjudicatory discretion to hold that there
is a reasonable ground for believing that bail seeking
accused is not guilty of the offence booked under the
Narcotic Drugs and Psychotropic Substances (NDPS) Act,
1985, so as to entitle him/her to earn bail, the court
cannot afford to over stretch itself by diving and delving
deep to the extent of making a forensic like appreciation
and appraisal of evidence on record as that would be
nothing but an advance ruling by a given trial court on a
very sustainability and survivability of the prosecution
case qua an accused.
22. The Hon’ble Supreme Court of India came to deal
with the import and intendment of the mandate of section
37 meant for a court in dealing with matter of granting or
refusing bail to an accused by reference to satisfaction
that the accused is not guilty and would not commit any
offence.
23. In the case of “Mohd. Muslim alias Hussain Vs
State (NCT of Delhi),”AIR 2023 SC 1648, the Hon’ble
Supreme Court of India in paragraphs 18 & 19 came
forward drawing correct understanding of the aspect
thereby facilitating it for the criminal courts in the
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application of section 37 of the NDPS Act, 1985. Said two
paragraphs 18 & 19 are reproduced herein under:-
“18. The conditions which courts have to be cognizant of
are that there are reasonable grounds for believing that the
accused is “not guilty of such offence” and that he is not
likely to commit any offence while on bail. What is meant by
“not guilty” when all the evidence is not before the court? It
can only be a prima facie determination. That places the
court’s discretion within a very narrow margin. Given the
mandate of the general law on bails (Sections 436, 437 and
439, CrPC) which classify offences based on their gravity,
and instruct that certain serious crimes have to be dealt
with differently while considering bail applications, the
additional condition that the court should be satisfied that
the accused (who is in law presumed to be innocent) is not
guilty, has to be interpreted reasonably.
Further the classification of offences under Special
Acts (NDPS Act, etc.), which apply over and above the
ordinary bail conditions required to be assessed by courts,
require that the court records its satisfaction that the
accused might not be guilty of the offence and that upon
release, they are not likely to commit any offence. These two
conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the
material on record such as the nature of the offence,
likelihood of the accused co- operating with the
investigation, not fleeing from justice: even in serious
offences like murder, kidnapping, rape, etc. On the other
hand, the court in these cases under such special Acts, have
to address itself principally on two facts: likely guilt of the
accused and the likelihood of them not committing any
offence upon release. This court has generally upheld such
conditions on the ground that liberty of such citizens have to
– in cases when accused of offences enacted under special
laws – be balanced against the public interest.
19. A plain and literal interpretation of the conditions
under Section 37 (i.e., that Court should be satisfied that the
accused is not guilty and would not commit any offence)
would effectively exclude grant of bail altogether, resulting in
punitive detention and unsanctioned preventive detention as
well. Therefore, the only manner in which such special
conditions as enacted under Section 37 can be considered
within constitutional parameters is where the court is
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reasonably satisfied on a prima facie look at the material on
record (whenever the bail application is made) that the
accused is not guilty. Any other interpretation, would result
in complete denial of the bail to a person accused of offences
such as those enacted under Section 37 of the NDPS Act.”
24. Thus, what is actually intended and meant by
reasonable grounds for believing that an accused is not
guilty of such an offence for the purpose of consideration
of bail application is an insightful reading and
understanding of the evidentiary material whatsoever
available on record at the given stage of the case when
plea of bail is getting considered, enabling a drawing of an
inference but not a conclusion that the final trial of an
accused may possibly result as against is likely to result
in his/her non-conviction. Therefore, at the given point of
time when an accused has come to seek bail, he/she can
be safely restored to liberty and release from the jail on
bail but surely not meaning to serve and deliver an
assurance to such an accused that since he/she has
earned bail from the trial court operating on a belief that
there are grounds for believing that he/she is not guilty,
therefore, his or her acquittal is now just a matter of
‘waiting’ to take place.
25. The petitioner in his bail petition has sought the bail
on the basis of grounds as set up in paras 5(A) to (B)
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urging the point that he has been implicated in the case
without any evidentiary basis and is being subjected to
trial which is going to fail against him in the final analysis.
26. The respondent – UT of J&K through SHO Police
Station Trehgam, Kupwara in its objection has resisted the
bail petition on the standard tone and tenor by
highlighting the drug menace in the UT of J&K in
particular Kashmir which calls for stringent application of
law even in the matter of grant of bail against the accused.
27. The narrative of the prosecution case is that upon
arrest of prime accused Asif Bashir it was disclosed by
him that he had made the alleged purchase of contraband
item Brown Sugar 8 grams from the petitioner which
confirmed commission of offence under sections 8/21, 29
of NDPS Act, 1985 against the petitioner along with prime
accused Asif Bashir. It is the Prosecution’s case that from
the examination of the bank account details of prime
accused – Asif Bashir, the involvement of co-accused Tahir
Ahmad Sofi was, allegedly made out and from whom
recovery of 5 grams Brown Sugar like substance and a
cash of ₹63,910/- was allegedly effected from his house.
Likewise upon the alleged disclosure of the petitioner,
purchase of Brown Sugar was referred from co-
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accused Idrees Ahmad Khan who upon his arrest is
alleged to have disclosed that he had made a deal of
₹40,000/- with the petitioner out of which had received
₹30,000/- and was found to be in possession of 2 grams of
Brown Sugar. It is by this narrative that commission of
offences under sections 8/21, 29, 27-A of NDPS Act, 1985
came to be set up by reference to all four accused.
28. Now, in the present case when this Court
undertakes said exercise of fetching the reasonable
grounds for belief that the accused-petitioner, as one of
the four accused, is or is not guilty of alleged offence, it is
to be kept in perspective that the accusations originated
from the alleged fact that accused No.1-Asif Bashir was
intercepted while driving motorcycle and upon his alleged
personal search found to be allegedly carrying contraband
of Brown Sugar (Heroin) of given weightage which surely is
not of a commercial quantity but an intermediate
quantity.
29. This particular episode in itself would have entitled
even accused No.1-Asif Bashir to bail in the routine course
of events in case if the accused No.1-Asif Bashir would
have been solely booked and put up for trial for
commission of offence under section 21(b) of the NDPS
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Act, 1985 but since a networking came to be set up by the
Investigation Officer to hook and book the petitioner, as
being the person from whom the prime accused Asif
Bashir allegedly claimed to have made procurement of the
said contraband item and then from the petitioner to
Idrees Ahmad Khan and lastly to Tahir Ahmad Sofi, as
such, the invoking of section 29 read with section 27-A of
the NDPS Act, 1985 came to be put to exploit by the
Investigating Officer by presentation of final police report
(challan) in that shape and show, as such the rigor in
earning bail by the petitioner got pitted against him right
from the very inception and the court below fell so to
speak in the trap by not evaluating individual wise
examination and evaluation of the facts and
circumstances of the case drawn from the Police
report/Challan and the evidence whatsoever then
available on record qua all the four accused persons.
30. Registration of the FIR in the case makes a very
curious reading which is a pointer to the fact that the real
genesis of the case perhaps is not the one as came to be
referred in the FIR in booking the accused No.1-Asif
Bashir at first instance.
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31. The alleged incident which formed basis for booking
of the accused No.1-Asif Bashir in the FIR is that said
accused No.1- Asif Bashir was found to be carrying the
alleged contraband narcotic and that meant he was found
to be in commission of offence under section 8(c) of the
NDPS Act, 1985 but in the FIR it is not by reference to
section 8(c) that the registration of offence against said
Asif Bashir came to be mentioned but instead it is by
mention of section 8(a) of the NDPS Act, 1985 read with its
section 21 that the registration of FIR came to take place.
32. Section 8(a) of the NDPS Act, 1985 is that ‘no person
shall cultivate any coca plant or gather any portion of coca
plant.’ By no stretch of imagination, the alleged mention of
offence can relate to the alleged act of omission or
commission on the part of accused No.1-Asif Bashir being
found in alleged possession of 8-10 grams of Brown Sugar
upon being intercepted by the Naka party.
33. This ex-facie inherent contradiction in the mention
of the offence in the FIR itself may serve to be a pointer as
to whether the Police came up with true version of facts in
the matter of registration of the FIR or it is upon an
adulterated version that the FIR came to be registered
which adulteration of facts continued in booking the
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petitioner followed by two other accused persons by
reference to the alleged involvement of prime accused
No.1- Asif Bashir.
34. One salient aspect of this case is the quantity of
alleged contraband item which is admittedly of
intermediate scale and by that reference diffuses the
stringency envisaged under section 37 of the NDPS Act,
1985 as held by the Hon’ble Supreme Court of India in its
case “Sami Ullaha Vs Superintendent, Narcotic Central
Bureau” (2008) 16 SCC 471.
35. Another salient aspect of the present case is that the
alleged involvement of the petitioner and his implication in
the criminal case has emanated from the alleged
confessional statement of the prime accused Asif Bashir
which invites the application of mandate of the judgment
of the Hon’ble Supreme Court of India in the case of
“Tofan Singh Vs State of Tamil Nadu” (2021) 4 SCC 1.
36. The facts of the present case are more or less
identically placed with the facts of the case in the “State
of West Bengal Vs Rakesh Singh” 2022(10) Scale 483.
Said case before the Hon’ble Supreme Court of India had
arisen out of bail granted by the Division Bench of the
High Court of Calcutta in the case of “Rakesh Singh Vs
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State of West Bengal” 2021 AIR Online Calcutta 1010
which grant of bail was assailed by the State of West
Bengal before the Hon’ble Supreme Court of India but the
grant of bail was upheld in favour of the accused.
37. Bearing in mind the aforesaid facts and
circumstances of the case, this Court is also inclined to
allow the present bail petition seeking bail. The petitioner
is hereby granted bail subject to furnishing of two bail
bonds, personal as well as surety, to an amount of Rs. 5
lac each subject to such other terms and conditions as
may be settled by the trial court of learned Principal
Sessions Judge, Kupwara within a period of seven days
from the date of receipt of the certified copy of this
judgment.
38. One of the conditions to be incorporated by the court
of learned Principal Sessions Judge, Kupwara in its order
setting terms and conditions of bail to be that in case the
petitioner is found involved/implicated in a fresh case
involving commission of offences under NDPS Act, 1985,
then the Prosecution shall be entitled to seek cancellation
of bail against the petitioner hereby granted.
39. Disposed of.
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40. Copy of this judgment be forwarded by the Registrar
Judicial, Srinagar to the court of Principal Sessions Judge,
Kupwara for notice and compliance.
( RAHUL BHARTI )
JUDGE
Srinagar
06.06.2025
Muneesh
Whether the Judgment is reportable: Yes