Bail App No. 247/2025 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case: Bail App No. 247/2025 Reserved on: 12.11.2025 Pronounced on: 20.11.2025 Uploaded on: 20.11.2025 Whether the operative part or full judgment is pronounced Balbir Singh @ Kala …..Petitioner Through: Ms. Z.S Watali, Advocate. Vs UT of J&K Through P/S ANTF, Jammu .…. Respondent Through: Mr. Pawan Dev Singh, Dy. AG CORAM: HON’BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE (JUDGMENT) 1. This petition is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking bail in FIR No.7/2021, under Section 8/21/29 NDPS Act of Police Station Anti Narcotics Task Force, Jammu [ANTF]. 2. Petitioner is facing trial before the Court of learned Special Judge (NDPS Cases), Jammu [the trial Court] for the commission of above mentioned offences, precisely on the Bail App No. 247/2025 accusation of transportation and possession of commercial quantity of heroine which came to be recovered on his disclosure. 3. For the purpose of adjudication of this application, the facts in brief are that on 19.07.2021 a reliable information said to have been received at Police Station ANTF, Jammu that accused, Naresh Kumar (dead) would be transporting huge quantity of heroine from Khour to Akhnoor for its onward delivery. This information led to registration of formal case in above terms. 4. During the course of investigation, the police patrolling party during Naka checking at about 1525 hours, intercepted one scooty bearing registration No.JK02BA-0104 driven by said Naresh Kumar and after completion of other procedural formalities, when scooty was searched, a green colour polyethene bag was recovered containing heroine weighing 1 kg 88 mg. 5. Accused-Naresh Kumar alleged to have made a disclosure regarding concealment of other consignment of heroine and also went onto disclose that he along with his accomplices, namely; Kamal Singh and Balbir Singh (petitioner herein) of Garar, Rishi Colony, Khour hatched the conspiracy for smuggling consignment of two packets of heroine from Pakistan with the connivance of notorious transborder smuggler, namely, Chacha of Sialkot, Bail App No. 247/2025 Pakistan. Accused Naresh Kumar further said to have disclosed that Kamal Singh, Balbir Singh and him have the conversation with Chacha via secure WhatsApp calls in respect of consignment of two packets of heroin kept/concealed at the pre-planned location near “Baint Trees” at International Border, Khour and consignment was smuggled/picked from the spot by his two associates; Kamal Singh @ Kali and Balbir Singh @ Kala. 6. It was further found that both the accused Balbir Singh and Kamal Singh after smuggling/picking the consignment of heroine had concealed the same under motor-pump installed in the filed of Balbir Singh. Out of these two packets, one was being carried by accused Naresh Kumar for onward delivery but he was nabbed, however on the disclosure of Naresh Kumar, the Investigating Officer had come to know about the cell numbers of Balbir Singh and Kamal Singh, through which they would speak to Chacha by making WhatsApp voice/video calls for smuggling the consignment of heroine. 7. Thereupon co-accused Kamal Singh and Balbir Singh were also arrested on, 21.07.2021 and precisely the accused Balbir Singh, the petitioner herein during enquiry disclosed in the presence of Executive Magistrate 1st Class, Akhnoor and other Bail App No. 247/2025 witnesses that he has concealed one packet of heroine wrapped in a rubber tyre tube in a pit near Meghen-Di-Chapddi, Garar, near International Border Khour. Accordingly, accused Balbir Singh, on 21.07.2021, while in police custody, got recovered the huge consignment of heroine concealed in rubber tyre tube in the presence of the Magistrate and on opening, same was found 1 kg 90 mg. 8. Although prosecution has delineated minute factual details of investigation, but for the purpose of present proceedings these are not relevant, therefore same are skipped for the time being. 9. Before coming to the grounds for grant of bail it will be proper to take note of the fact that the petitioner had also approached the trial Court seeking concession of bail, however, the trial Court vide order dated 18.08.2025 rejected the application, after coming to the conclusion that there is sufficient material on record which suggests the complicity of the accused in commission of alleged offence, in that evidence shows their movement towards international border; Ashok Kumar PW-3 (EMIC) has supported the prosecution case; call details are collected, etc. Bail App No. 247/2025 10. At the outset, it needs to be mentioned that the grounds taken in the petition are almost similar to those urged before the trial Court. The petition mainly proceeds on the premise that the petitioner is only male member in the family to take care of his widow mother. Secondly; it is also submitted that once prayer for grant of bail is made on humanitarian ground, then the rigors of Section 37 NDPS Act, would not come into play. Thirdly; the petitioner banked upon the testimony of PW-3 Ashok Kumar (Magistrate) to buttress the point that his testimony is sufficient to belie the case of the prosecution, inasmuch as it is also pointed out that the mandatory provisions of NDPS Act are not followed nor independent witnesses were associated. 11. On the other hand, the respondent has filed the objections and resisted the petition on the ground that the petitioner is not entitled to bail in view of the rigors of Section 37 of NDPS Act, as there is sufficient evidence on record which prima facie shows the complicity of the petitioner in commission of alleged offence. Furthermore, in the objections, the factual narration of prosecution case has been delineated and same need no reiteration here, however, it is suffice to note that the main plank of argument of respondent is that keeping in view the Bail App No. 247/2025 material on record, the rigors of Section 37 NDPS Act comes into play, therefore, the petitioner is not entitled to the bail. 12. Heard learned counsel for the parties and gone through the record. 13. The prosecution has by now recorded six witnesses including PW-3, Ashok Kumar (Magistrate), therefore, broadly speaking, on consideration of the statement of PW-3, it would made loud and clear that on the disclosure of accused, Naresh Kumar, the police nabbed the co-accused Kamal Singh and Balbir Singh and on the disclosure and identification of petitioner, Balbir Singh, heroine weighing 1 kg 90 mg, came to be recovered. 14. Perusal of trial Court record reveals that there is sufficient material to establish that accused were in touch with the smuggler(s) across the border, however, of course, same is subject to adduction of evidence during trial, therefore to say that there is no material worth the name would be a totally mis statement. 15. Once prima facie the statement of PW-3 i.e., Magistrate points towards the involvement of the petitioner herein that on his disclosure and identification, heroine weighing 1 kg 90 mg was recovered in that event the heavy duty cast on the petitioner to Bail App No. 247/2025 come out of the rigors of Section 37 of the NDPS Act which enjoins upon the Court to firstly provide opportunity to the public prosecutor to oppose the application and secondly; the Court has to draw the satisfaction that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit offence while on bail. 16. Insofar grounds of violation of mandatory provisions of NDPS Act are concerned, though same were raised before the trial Court also but were turn down, however, at this stage, be it noted that any procedural irregularity or illegality, even if found to have been committed in conducting search and seizure, etc., that would by itself does not make the entire evidence inadmissible, in that case, Court has to consider and take into account holistic view of all the circumstances. 17. Insofar as the ground of bail on humanitarian ground is concerned, there is nothing on record to the satisfaction of the Court necessitating the concession of bail to the petitioner so as to enable him to attend his mother, therefore, once the trial Court granted short bail and thereafter withdrawn that concession, same goes to show that the petitioner failed to satisfy the trial Court regarding his dire necessity at home to attend his mother. Bail App No. 247/2025 18. In addition, the contention of learned counsel that there is no material against the petitioner, also does not hold water in view of the fact that there is sufficient material on record in the form of call details and factual foundation of visit of the accused to the frontier, that also shows that prima facie there was linkage between the accused and the trans-border smuggler(s) on the other side of the border. 19. Indisputedly, the quantity of alleged recovered heroine is much more than the commercial quantity, therefore, unless the Court records the satisfaction the only requirement as envisaged under Section 37 of the NDPS Act, it is not legally permissible to grant concession of bail. In the recent judgment of the Hon’ble Supreme Court passed in Union of India Vs. Vigin K. Varghese; 2025 SCC OnLine SC 2440, whereby while setting aside the order of the High Court granting bail without properly considering the rigors of Section 37 held 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 Bail App No. 247/2025 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 operative control and antecedent involvement, risks trenching upon appreciation of evidence which would be in the domain of trial court at first instance. 22. …………The matters are remitted to the High Court of Judicature at Bombay for fresh consideration of the respondent’s prayer for bail. The High Court shall, after affording an opportunity of hearing to both the sides and upon adverting to the statutory requirements of Section 37 and to the relevant material on record, pass a reasoned order keeping in mind the observations made hereinabove within four weeks from the date of receipt of this order…………………………………..” 20. Turning to the case on hand, as it has been observed that the main ground of seeking bail, hinges on the point that PW-3, i.e., Magistrate during his examination before the Court did not connect the petitioner with the commission of alleged offence, however, to the contrary on analyzing the testimony of PW-3 as a whole, one would find that it has categorically deposed by PW-3 Bail App No. 247/2025 that the alleged recovery of contraband is made on the disclosure and identification of petitioner herein, thus the testimony of PW-3 is more than enough to draw the satisfaction that there is a prima facie case showing involvement of the petitioner in commission of alleged offence, thus the rigors of Section 37 NDPS Act applies with all its might. 21. In view of the settled proposition of law, particularly once prima facie, the complicity of the petitioner surfaced, in that event, the petitioner does not deserve the concession of bail as embargo of Section 37 of NDPS Act stands in his way to grant the liberty. 22. Accordingly, the bail application is dismissed. (SHAHZAD AZEEM) JUDGE JAMMU 20.11.2025 Surinder Whether order is speaking: Yes/No Whether order is reportable: Yes/No Surinder Kumar 2025.11.20 17:49 I attest to the accuracy and integrity of this document