Bail App No.137/2021 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 04.11.2025 Pronounced on: 08.11.2025 Uploaded on: 08 .11.2025 Whether the operative part or full judgment is pronounced: Full Bail App No. 137/2021 JAVAID AHMAD KHAN ...PETITIONER(S)/APPELLANT(S) Through: - Mr. Danish Majeed Dar, Advocate, with Ms. Mahjabeen, 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.93/2021 for offences under Sections 8/21, 23 and 29 of NDPS Act read with Section 466 and 34 IPC registered with Police Station, Handwara. 2) As per case of the prosecution, on 16.04.2021, while the police party of Police Post, Langate, had laid a Naka for checking of vehicles near Dand Kadal, they stopped a Santro vehicle bearing No.JK09A-0504 that was proceeding from Batagund towards Langate. Two persons traveling in the Bail App No.137/2021 said vehicle got down from it and fled away. Out of these persons, mobile cellphone of one person of “Redmi” make fell down and the same was picked up by the police party. However, the driver and another person travelling in the vehicle were nabbed by the police and they were subjected to search. A white coloured polythene bag was recovered from their possession and it was found to contain about 900 grams of heroin like contraband substance. Upon questioning, these two persons disclosed their names as Mohammad Yousuf Bhat and Javaid Ahmad Khan (petitioner herein) and upon further questioning, these persons disclosed the names of the persons who had fled away from the spot as Zahoor Ahmad Bhat and Bashir Ahmad Dar. 3) On the basis of the docket submitted to the Police Station by the Naka party, FIR No.93/2021 for offences under Section 8/21 NDPS Act was registered and investigation was set into motion. During the investigation of the case, statements of the witnesses under Section 161 and 164 of the Cr. P. C were recorded. The recovered heroin was sealed and it was found to be weighing 01 kg. The samples were drawn from the seized heroin and the same were sent to the FSL for examination. The mobile cellphone left behind by one of the accused was seized and the vehicle Bail App No.137/2021 was also seized. During investigation of the case, it was found that the chassis number of the vehicle was not registered with the office of RTO, Kashmir and, in fact, number plate of some other vehicle had been fixed on the vehicle in order to hoodwink the police. The Call Detail Records of the cellphone that was recovered on spot were also obtained and it was found that the Sim Card had been issued in the name of one Mohammad Azam. The statement of Shri Mohammad Azam was recorded who disclosed that the Sim Card was under the use of his maternal uncle, accused Zahoor Ahmad Bhat. From analysis of call details, it was found that the accused were in contact with each other. Thus, offences under Section 8/21, 22, 29 of NDPS Act read with Section 466 and 34 IPC were found established against the accused including the petitioner herein and, accordingly, the challan was laid before the Court of learned Additional Sessions Judge, Handwara on 09.10.2021. 4) It appears that vide order dated 26.05.2022, charges for aforesaid offences, were framed against the accused including the petitioner herein and trial of the case was set into motion. Prior to the laying of challan before the trial court, the petitioner had applied for grant of bail but his application came to be dismissed by the trial Court in terms of order dated 28.08.2021. Bail App No.137/2021 5) The petitioner has sought bail on medical grounds as well as on merits. Having regard to the health condition of the petitioner at the relevant point of time, this Court in terms of order dated 27.12.2021, granted temporary bail to the petitioner on medical grounds. The said order has been extended from time to time and is in force till date. 6) The latest health status of the petitioner was sought in terms of order dated 22.11.2024. Pursuant thereto, it seems that the petitioner was examined by a Board of Doctors on 01.01.2025. As per the report of the Board of Doctors, no abnormality has been detected from the physical and mental status examination of the petitioner. It has been further reported that there is no past history of mental illness, suicidal attempt, substance abuse, seizure disorder. It has also been indicated that the petitioner has not reported any grievous physical health complication at present or in recent past. 7) In view of the aforesaid report of the Board of Doctors, continuance of temporary bail on health grounds in favour of the petitioner is not called for. 8) Learned counsel appearing for the petitioner has submitted that the bail application of the petitioner on merits is required to be considered. He has argued that Bail App No.137/2021 during the pendency of this application, the trial of the case has progressed substantially and even the co-accused have been enlarged on bail. In this regard, the learned counsel has referred to order dated 21.02.2025 passed by this court in Bail App No.68/2024 in the case of co-accused Bashir Ahmad Dar. He has further contended that since the petitioner has been on interim bail for last about four years and there is nothing on record to show that he has misused the concession of bail, therefore, he deserves to be enlarged on bail on merits as well. 9) Learned counsel for the respondent, on the other hand, has submitted that the grounds on which co-accused Bashir Ahmad Dar has been enlarged on bail, cannot be made applicable to the case of the petitioner, inasmuch as the recovery of contraband substance has taken place from the possession of the petitioner whereas, as per order dated 21.02.2025 passed by this court in Bail App No.68/2024, co-accused Bashir Ahmad Dar was implicated only on the basis of the statement by the other accused. Thus, according to learned counsel for the respondent, the petitioner cannot claim parity with the case of co-accused Bashir Ahmad Dar. He has contended that the petitioner, in order to succeed in carving out a case for grant of bail on merits, has to meet the conditions contained in Section 37 of the NDPS Act. Bail App No.137/2021 10) As already stated, the bail application of the petitioner in merits was declined by the learned trial court on 28.08.2021. At that time, the chargesheet had not been laid before the learned trial court. The chargesheet was produced before the learned trial court on 09.10.2021. The record of the trial court shows that trial of the case has progressed substantially after the dismissal of application of the petitioner on 28.08.2021 and during pendency of the present bail application. Thus, there is a substantial change in circumstances from the time when application of the petitioner for grant of bail on merits was dismissed by the learned trial court. In these circumstances, it will be appropriate for the petitioner to approach the learned trial court for grant of bail on merits. It would be open to the learned trial court to consider all the pleas that have been raised by the petitioner in the present bail application. 11) In view of the above, the petition is disposed of by giving liberty to the petitioner to approach the learned trial court by way of a fresh application seeking bail on merits on all available grounds. In order to enable the petitioner to approach the trial court, the interim bail granted to him vide order dated 27.12.2021 shall remain in force for a period of one month from today. In case the petitioner approaches the learned trial court for grant of bail, the same shall be dealt Bail App No.137/2021 with by the said court in accordance with law most expeditiously, preferably within a period of one month from the date the petitioner approaches the said court with an application for grant of bail. 12) A copy of this order be sent to the learned trial court for information and compliance. (Sanjay Dhar) Judge SRINAGAR 08.11.2025 “Bhat Altaf-Secy” Whether the Judgement is reportable: Yes/No