Jammu & Kashmir High Court – Srinagar Bench
Nazim Ahmad Sheikh vs Ut Of J&K on 1 August, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 28.07.2025
Pronounced on: 01.08.2025
Bail App No.01/2025
NAZIM AHMAD SHEIKH ... PETITIONER(S)
Through: - Mr. Waqar-ul-Haq, Advocate.
Vs.
UT OF J&K ...RESPONDENT(S)
Through: - Mr. Faheem Nisar Shah, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has invoked jurisdiction of this Court under Section
483 of BNSS for grant of bail in a case arising out of FIR No.61/2021 for
offences under Sections 8/21/29 of NDPS Act registered with Police
Station, Karnah.
2) As per case of the prosecution, on 07.06.2021, SPO Shafat Ahmad
approached the Police Station with a written docket from Incharge Police
Post, Taad, alleging therein that one Naseer Ahmad Sheikh (co-accused)
is in possession of contraband substance (brown sugar) which he was
planning to smuggle to local youth in Kupwara. On the basis of this
docket, FIR No.61/2021 for offences under Section 8/21/29 of NDPS Act
came to be registered and investigation was set into motion.
3) During investigation, the police party along with Executive
Magistrate, 1st Class, Tangdar, proceeded to the spot and accused Naseer
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Ahmad Sheikh was apprehended. He made a disclosure statement before
the police stating therein that he had concealed two packets of brown sugar
in a wall of boulders and that the said two packets were procured by him
from Nazim Ahmad Sheikh, the petitioner herein. On the basis of the
disclosure made by co-accused Naseer Ahmad Sheikh, the two packets of
brown sugar were recovered and the same were found to weigh 2 kgs. The
samples of the recovered contraband substance were sealed in presence of
the Executive Magistrate, 1st Class, Tangdar, and the same were sent to
FSL for chemical examination. After recording statements of the
witnesses under Section 161 and 164 of the Cr. P. C, the offences under
Section 8/21/29 of NDPS Act were found established against the accused
including the petitioner herein. While co-accused Naseer Ahmad Sheikh
was arrested by the police, the petitioner herein, despite best efforts, could
not be arrested. Accordingly, the challan was presented before the trial
court in the absence of the petitioner and a prayer was made before the
learned trial court for declaring him as an absconder.
4) It seems that that on 20.05.2022, the petitioner came to be arrested
and the learned trial court vide order 23.08.2023, framed charges for
offences under Section 8/21 of NDPS against the petitioner. Co-accused
Naseer Ahmad Sheikh was also charged for the same offences vide the
same order. It also appears that the bail application of the petitioner was
dismissed by the learned trial court in terms of order dated 11.12.2024.
5) The petitioner has sought bail in the aforesaid case on the grounds
that he has been falsely implicated in the case only on the basis of the
confessional statement made by co- accused Naseer Ahmad Sheikh and
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that there is no other evidence on record against him. It is being urged that
there are no reasonable grounds for believing that the petitioner has
committed the offence alleged against him. It has been further contended
that nothing has been recovered from the possession of the petitioner and
there is no material connecting the petitioner with the alleged crime. It has
been contended that most of the material witnesses have been examined
by the prosecution. The petitioner has been in custody for the last about
three years and there is no likelihood of completion of trial in near future,
therefore, he deserves the concession of bail.
6) The respondent, in its reply, besides narrating the facts alleged in
the charge sheet, has contended that the petitioner is involved in a heinous
offence, as such, he is not entitled to concession of bail. It has further been
submitted that fact that the petitioner could not be arrested during
investigation of the case and a prayer had to be made before the learned
trial court for declaring him as absconder, shows that in case the petitioner
is granted bail, there is every chance that he may jump the concession of
bail.
7) I have heard learned counsel for the parties and perused record of
the case including the trial court record.
8) In the instant case, commercial quantity of contraband has been
recovered from the possession of the co-accused. So far as grant of bail in
cases involving possession of commercial quantity of contraband is
concerned, the Court has to adhere to the procedure and guidelines
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provided under the provisions contained in Section 37 of the NDPS Act,
which reads as under:
“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
(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.”
9) From a perusal of the aforesaid provision, it is clear that in the cases
involving offences relating to 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 the Public Prosecutor who has to be given an opportunity to
oppose the bail application. Further 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.
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10) The expression “reasonable grounds” has been discussed by the
Supreme Court in the case of Collector of Customs, New Delhi vs.
Ahmadalieva Nodira, (2004) 3 SCC 549, in the following manner:
“7.The limitations on granting of bail come in only when the
question of granting bail arises on merits. Apart from the
grant of opportunity to the public prosecutor, the other twin
conditions which really have relevance so far the present
accused-respondent is concerned, are (1) the satisfaction of
the Court that there are reasonable grounds for believing that
the accused is not guilty of the alleged offence and that he is
not likely to commit any offence while on bail. The conditions
are cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to
be based for reasonable grounds. The expression “reasonable
grounds” means something more than prima facie grounds. It
contemplates substantial probable causes for believing that
the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires
existence of such facts and circumstances as are sufficient in
themselves to justify satisfaction that the accused is not guilty
of the alleged offence.”
11) Again, in State of Kerala and others vs. Rajesh and others,
(2020) 12 SCC 122, the Supreme Court has observed as under:
“21. The expression “reasonable grounds” means something
more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of
the alleged offence. The reasonable belief contemplated in
the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to have
completely overlooked the underlying object of Section
37 that in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail under
the NDPS Act is indeed uncalled for.”
12) The Supreme Court has recently, while relying upon the aforesaid
two judgments, in the case of Narcotics Control Bureau vs. Mohit
Aggarwal, 2022 Live Law (SC) 613, 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 of the alleged offence. For arriving
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Bail App No.01/2025at 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.”
13) From the aforesaid analysis of the law on the subject it is clear that
for the limited purpose of considering the bail application of the petitioner,
this Court has to consider the material on record so as to ascertain whether
such facts and circumstances are existing that can persuade the Court to
believe that the accused person has not committed the offence for which
he has been booked. The Court has to be satisfied that there are credible
and plausible grounds for believing that the accused is not involved in the
offence.
14) In the light of the foregoing analysis of law on the subject, let us
now consider the material on record. As per case of the prosecution, on
the fateful day, co-accused Naseer Ahmad Sheikh was arrested on the
basis of a specific information and upon his arrest, he made a disclosure
statement stating therein that he had concealed two packets of heroin,
which he had obtained from the petitioner, in a wall of boulders. It is case
of the prosecution that on the basis of said disclosure statement, the
contraband substance was recovered and seized. Admittedly, nothing has
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been recovered from the possession of the petitioner. His involvement, as
it appears from the perusal of the trial court record, is based upon the
disclosure statement made by co-accused Naseer Ahmad Sheikh. The
question that arises for consideration is as to whether the petitioner can be
connected with the alleged crime on the basis of the disclosure statement
made by the co-accused before the police officials.
15) The law on the aforesaid subject is very clear. The confessional
statement of a co-accused has been time and again held to be inadmissible
in evidence in view of the provisions contained in Section 25 and 26 of
the Evidence Act. The only exception to inadmissibility of a statement
made by an accused before a police official is Section 27 of the Evidence
Act, which provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information,
as relates distinctly to the fact thereby discovered, is admissible in
evidence. Thus, a confessional statement made by an accused before the
police which relates distinctly to the fact thereby discovered is only
admissible in evidence. The Supreme Court has repeatedly held that
confessional statement of a co-accused is inadmissible in evidence. In this
regard reference can be made to the ratio laid down by the Supreme Court
in the case of Tofan Singh vs. State of Tamil Nadu, 2020 SCC Online
SC 882. The same position has been reiterated by this Court in the case
of Rayees Ahmad Dar vs. UT of J&K (Bail App No.05/2022 decided on
21.05.2022).
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16) In the instant case, nothing has been recovered from the possession
of petitioner. The recovery of the contraband has been effected on the
basis of the disclosure statement made by co-accused Naseer Ahmad
Sheikh. His disclosure statement is, therefore, protected under Section 27
of the Evidence Act. However, it is only that part of his statement that
relates distinctly to the fact thereby discovered, which is admissible in
evidence, meaning thereby that only portion of the disclosure statement
made by co-accused Naseer Ahmad Sheikh, which relates to the recovery
of contraband substance is admissible in evidence. So far as his statement
with regard to involvement of the petitioner in the alleged crime is
concerned, the same is not protected by the provisions contained in
Section 27 of the Evidence Act. Thus, prima facie, it appears that the
petitioner could not have implicated in the case on the basis of the
disclosure statement made by co-accused Naseer Ahmad Sheikh.
17) From the foregoing discussion, there appear to be reasonable
grounds for believing that the petitioner/accused is not guilty of the
alleged offences. There is nothing on record to show that the petitioner
has any criminal antecedents or that in previous past he has been involved
in similar offences. Although it has been contended by the respondent that
the petitioner had absconded during investigation of the case, yet there is
no material on record to show that if the petitioner is enlarged on bail, he
would misuse the concession of bail even in future.
18) Apart from the above, a perusal of the trial court record shows that
most of the witnesses have been examined in the case and only five
witnesses out of 11 listed witnesses are to be examined. The petitioner has
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been in custody for the last about three years, as such, his further
incarceration would not serve any fruitful purpose. On this ground also,
the petitioner is entitled to bail.
19) For the foregoing reasons, the application is allowed and the
petitioner is admitted to bail subject to the following conditions:
(i) That he shall furnish bail bond and personal bond
in the amount of Rs.50,000 (rupees fifty thousand)
with one surety of the like amount to the
satisfaction of the trial court;
(ii) That he shall appear before the trial court on each
and every date of hearing;
(iii) That he shall not leave the territorial limits of Union
Territory of J&K without prior permission of the trial
court;
(iv) That he shall not tamper with the prosecution
witnesses/evidence;
(v) That he shall not indulge in similar activities;
20) Any observation made hereinabove shall remain confined to the
decision of the instant application only and shall not be construed as
expression of opinion on the merits of the case.
21) The bail application shall stand disposed of.
(SANJAY DHAR)
JUDGE
Srinagar,
01.08.2025
“Bhat Altaf-Secy”
Whether the Judgment is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document01.08.2025 02:31