Jammu & Kashmir High Court – Srinagar Bench
Sameer Ahmad Malik vs Ut Of J&K on 15 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No.37
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Bail App No.123/2024
SAMEER AHMAD MALIK ...PETITIONER(S)
Through: - M/s: Tahir Ahmad Bhat &
Abdul Wakeel Koka, Advocate.
Vs.
UT OF J&K ...RESPONDENT(S)
Through:- Mr. Faheem Nissar Shah, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
15.07.2025
1) The petitioner has invoked jurisdiction of this Court
under Section 483 of BNSS seeking bail in a case arising out
of FIR No.90/2023 for offences under Section 8/21 of NDPS
Act registered with Police Station, Kulgam, which is pending
before the Court of Principal Sessions Judge, Kulgam
(hereinafter referred to as “the trial court”)
2) As per the prosecution case, on 5th May, 2023, Police
Station, Kulgam, received a docket from Head Constable
Farooq Ahmad for registration of FIR. In the docket it was
mentioned that the aforenamed police official along with
other police personnel, while performing patrolling duty,
spotted a person, carrying a Nylon bag, moving in suspicious
circumstances. The said person was proceeding from
Bail App No.123/2024 Page 1 of 10
Adapora towards Kulgam on foot. The police chased the said
person and nabbed him near Adapora Crossing. Upon
questioning, the person disclosed his name as Sameer
Ahmad Malik, the petitioner herein. Upon his search of the
Nylon bag, 11 bottles (100 ml each) of “Cocray Codeine
Phosphate” were recovered. The petitioner could not give any
explanation with regard to possession of the recovered drugs
and, in fact, it was found that the petitioner was involved in
illicit trade of drugs. The petitioner was taken into custody
and investigation of the case was set into motion.
3) During investigation of the case, the seized bottles of
recovered drugs were sealed and the same were produced
before the Executive Magistrate in whose presence the
sample was drawn and sealed and the remaining bottles
were also sealed. The sealed sample of seized drugs was sent
to FSL for examination. As per report of the chemical
examiner, the sample was found to contain “Codeine
Phosphate”, a narcotic drug. The statements of the witnesses
under Section 161 of Cr. P. C were recorded and after
investigation of the case, offences under Section 8/21 of
NDPS Act were found established against the petitioner,
whereafter challan was laid before the learned trial court.
4) Vide order 11.11.2023, learned trial court framed
charges for offences under Section 8/21 of NDPS Act against
Bail App No.123/2024 Page 2 of 10
the petitioner who denied the charges, as such, the
prosecution was directed to lead evidence in support of the
charges. A perusal of the trial court record would reveal that
as many as nine witnesses listed in the challan, have been
examined so far by the trial court. It also appears that the
learned trial court during trial of the case has declined the
concession of bail to the petitioner in terms of its order dated
29.07.2024.
5) The petitioner has sought bail on the grounds that all
the prosecution witnesses listed in the challan have already
been examined and now the case has been set down for
recording statement of the accused/petitioner under Section
313 of Cr. P. C. It has been contended that the evidence
recorded before the trial court does not make out a case
against the petitioner and from a perusal of the statements
of the prosecution witnesses, it can safely be stated that the
petitioner is not guilty of the offence for which he has been
charged. It has been contended that the Investigating Agency
has not drawn sample of the seized drug from all the 11
bottles but has sent only one bottle of drug to FSL for its
examination. Thus, it cannot be stated that other ten bottles
were also containing Codeine Phosphate. On this ground, it
is being contended that it cannot be stated that the
petitioner was found in possession of commercial quantity of
Bail App No.123/2024 Page 3 of 10
the contraband drugs. The petitioner has further contended
that there is nothing on record to suggest that the petitioner
has any previous history of committing similar offences or
that he is likely to commit similar offences.
6) The respondent-State has resisted the bail application
by filing reply thereto. In its reply, the respondent-State,
besides reiterating the contents of the challan, has
contended that the petitioner is involved in a heinous crime,
as such, he does not deserve to be enlarged on bail. It has
been further submitted that if the petitioner is extended the
concession of bail, it will have an adverse impact on the
society at large. It has been further submitted that there are
reasonable grounds for believing that the petitioner would
jump the concession of bail if granted by this Court.
According to the respondents all the witnesses examined
have supported the prosecution story, therefore, there is no
case for grant of bail in favour of the petitioner.
7) I have heard learned counsel for the parties and
perused record of the case.
8) So far as the principles regarding grant or refusal of bail
to an accused are concerned, the same are more or less
settled. The considerations that must weigh with the court
while deciding a bail application are as under:
Bail App No.123/2024 Page 4 of 10
(i) Whether there is a prima facie or
reasonable ground to believe that the
accused has committed the offence;
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of
conviction;
(iv) Danger of accused absconding or
fleeing, if released on bail;
(v) Character, behavior, means, position
and standing of the accused;
(vi) Likelihood of the offence being
repeated;
(vii) Reasonable apprehension of the
witnesses being tampered with;
(viii) Danger of course of justice being
thwarted by grant of bail;
9) When it comes to offences punishable under NDPS Act,
particularly those which involve possession of commercial
quantity of contraband substance, the court has to keep in
view something more than aforesaid principles. Section 36C
of the NDPS Act makes Code of Criminal Procedure
applicable to the proceedings before a Special Court which
includes the provisions as to bail and bonds. However,
Section 37 of the NDPS Act stipulates additional conditions
before a person accused of committing an offence involving
commercial quantity of contraband substance is released on
bail. It would be apt to refer to the provisions contained in
Section 37 of the NDPS Act:
“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;
Bail App No.123/2024 Page 5 of 10
(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
(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.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being
in force, on granting of bail.”
10) From a perusal of the aforesaid provision, it is clear
that Section 37 of NDPS Act is not a complete bar to grant of
bail in a case where recovery of contraband drug falls within
the parameters of commercial quantity. It only provides that
bail in such cases cannot be granted unless the Public
Prosecutor has been given an opportunity to oppose the
application and that there are reasonable grounds to believe
that the accused is not guilty of such offence and that he is
not likely to commit any offence while on bail.
11) In the light of aforesaid legal position, let us now
consider the facts of the present case. According to the
petitioner, the evidence led by the prosecution prima facie
goes on to show that he is not guilty of offence relating to
possession of commercial quantity of contraband drugs. In
Bail App No.123/2024 Page 6 of 10
this regard, learned counsel for the petitioner has taken me
through the statements of nine prosecution witnesses that
have been recorded during trial of the case
12) Before testing the merits of the contention raised by
learned counsel for the petitioner, it has to be borne in mind
that at the stage of considering bail application of an
accused, the evidence led by the prosecution cannot be
meticulously examined. It is only if from a cursory look at
the evidence recorded during trial of the case it is possible to
frame an opinion that accused is not guilty of offence
involving commercial quantity of drugs that he can be
enlarged on bail. Framing of such opinion at the time of
consideration of the bail application after meticulous
examination and appreciation of the evidence on record, is
impermissible in law.
13) The main ground that has been urged by learned
counsel for the petitioner for seeking bail is that the
Investigating Agency has not drawn samples from all the 11
bottles but has sent only one bottle to FSL for expert
examination. It has been submitted that in the absence of
any evidence to show that other ten seized bottles also
contained Codeine Phosphate, it cannot be stated that the
petitioner was found to be in possession of commercial
quantity of contraband drug.
Bail App No.123/2024 Page 7 of 10
14) In the above context, a perusal of the trial court record
would reveal that on 06.05.2023, a police official from Police
Station, Kulgam, produced a sealed parcel marked as “A”
containing 11 bottles (100 ml each) before the Executive
Magistrate, Kulgam, for breaking open the seals and for
extracting sample. The communication of the Executive
Magistrate, 1st Class, Kulgam, EXPW-The, reveals that the
parcel was opened in the Court of Executive Magistrate, out
of which one bottle (100 ml) was taken and resealed in a
separate parcel marked as ‘A1″ whereas the remaining
bottles were kept in the custody of SHO concerned. There is
no mention in the communication, that has been addressed
by the Executive Magistrate, 1st Class, Kulgam, to the
Director, FSL, Srinagar, that samples were drawn from each
of the 11 bottles produced by the police before the Executive
Magistrate. The language of the communication indicates
that only one, out of 11 seized bottles, was resealed and
thereafter sent to FSL for expert opinion and the other ten
bottles were handed over back to the Investigating Agency.
15) The statement of the Executive Magistrate recorded by
the trial court on 22.11.2024 also indicates that out of 11
bottles produced before him, one bottle was taken out and
resealed whereas other ten bottles, after sealing, were
handed over back to the Investigating Agency. From this,
Bail App No.123/2024 Page 8 of 10
prima facie, it appears that the Investigating Agency has not
drawn samples from all the 11 seized bottles but has sent
only one seized bottle for examination of its contents by the
FSL. Thus, there is no opinion of the FSL expert in respect
of other ten recovered bottles.
16) Learned counsel for the petitioner has contended that
in the absence of opinion of the FSL with regard to remaining
ten recovered bottles, it cannot be stated that the petitioner
was found to be in possession of commercial quantity of
contraband drugs. There appears to be merit in his aforesaid
contention.
17) In view of the what has been discussed hereinbefore, it
appears that there are reasonable grounds for believing that
the petitioner is not guilty of offence of possessing
commercial quantity of contraband drugs. The respondents
have not placed on record any material to show that the
petitioner has any previous history of having indulged in the
illicit trade of narcotic drugs nor have they placed on record
any material to show that in case he is admitted to bail, he
is likely to commit similar offences. Thus, the petitioner has
succeeded in carving out a prima facie case for grant of bail
in his favour.
18) Apart from the above, the petitioner is in custody since
05.05.2023, meaning thereby he has spent more than two
Bail App No.123/2024 Page 9 of 10
years in custody. The trial of the case is almost complete.
Therefore, in case the petitioner is enlarged on bail, there is
no scope for him to tamper with the prosecution witnesses.
19) For the foregoing reasons, the petition is allowed and
the petitioner is admitted to bail subject to the following
conditions:
(i) That he shall furnish personal bond in the amount of
Rs.50,000/ with two sureties of the like amount to the
satisfaction of the learned trial court;
(ii) That he shall appear before the learned trial court on
each and every date of hearing.
(iii) That he shall not leave the territorial limits of the
Union Territory of J&K without prior permission of the
learned trial court;
(iv) That he shall not intimidate or tamper with
prosecution witnesses/evidence.
(v) That he shall not indulge in similar activities;
20) The bail application shall stand disposed of.
(SANJAY DHAR)
JUDGE
Srinagar,
15.07.2027
“Bhat Altaf-Secy”
Whether the JUDGMENT is reportable: Yes/No
Bail App No.123/2024 Page 10 of 10
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