Bail App No. 240/2025 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case No. Bail App No. 240/2025 Reserved on: 12.11.2025 Pronounced on: 17.11.2025 Uploaded on: 17.11.2025 Whether the operative part or full judgment is pronounced Fayaz Ahmad Sheikh …..Petitioner/Appellant(s) Through: Ms. Vasudha Sharma, Advocate Vs Union of India .…. Respondent(s) Through: Mr. Sumant Sudhan, Advocate vice Mr. Vishal Sharma, DSGI CORAM: HON’BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE (JUDGMENT) 1. The petitioner is facing trial before the Court of learned Principal Sessions Judge, Samba (Special Judge under NDPS Act) [the trial Court] in NCB Crime No. 16 of 2021 for the commission of offences under Section 8/22/29 NDPS Act, and has filed application before the trial Court seeking concession of bail, however, the trial Court vide order dated 19.05.2025 dismissed the application, as a consequence whereof, now, petitioner has invoked the jurisdiction of this Court under Section 483 of Bail App No. 240/2025 Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for grant of bail. 2. The grounds of bail revolves around the point that by now, out of 11 listed prosecution witnesses, the prosecution has examined as many as 07 witnesses, but statements of the recorded witnesses stated to have been suffering from major inconsistencies and infirmities, inasmuch as, there is non- compliance of mandatory provisions of Section 52, 52-A, 55 of NDPS Act and Standing Orders. It is further averred that there is also pre-registration of Crime Number/F.I.R; the prosecution also failed to establish the safe custody of the contraband; sealing and resealing is not done as per mandatory provisions of NDPS Act; no independent witness is associated and finally, also in support of the application cited plethora of judgments. 3. Per contra, the respondent has filed the objections and resisted the petition mainly on the ground that the alleged seized quantity of contraband falls within the commercial quantity, therefore, in view of bar of Section 37 of NDPS Act, he does not deserve the concession of bail unless he comes out of the rigors of Section 37 of NDPS Act. Bail App No. 240/2025 4. In the objections, it is further stated that the petitioner was found in conscious possession of 3456 number of capsules of Spasmo Proxyvon Plus which contains Tramadol, a psychotropic substance, therefore, the recovery of such a huge narcotic drug apparently reveals involvement of the petitioner and other accused in drug trafficking. The respondent has also resisted the application on the ground that mere procedural irregularity and illegality in search and seizure would by itself does not make the entire evidence collected during the course of investigation inadmissible and in support of this proposition, cited judgments inasmuch as, submitted that in absence of public witnesses, recovery cannot be doubted. Finaly, the respondent prayed for dismissal of the application in view of embargo contained in Section 37 of NDPS Act and keeping in view the larger interest of the society. 5. I have heard learned counsel for the parties and perused the record. 6. To be brief, the accusation against the petitioner for which he is put to trial is that on the basis of a secret information that Fayaz Ahmad Sheikh (petitioner) is transporting huge quantity of narcotic drugs i.e. Spasmo Proxyvon Plus containing Bail App No. 240/2025 Tramadol and is travelling from New Delhi to Jammu on a bus bearing registration No. HR55AC-8798 and will reach at Sarore Toll Plaza, Samba at around 0400 hrs to 0800 hrs on 26.11.2021, the NCB Team headed by Sh. Vijay Kumar, Intelligence Officer laid a naka and on spotting the above numbered bus signaled the driver to stop. When the vehicle was said to have been stopped, the Intelligence Officer, Sh. Vijay Kumar after introducing himself to the driver of the bus also disclosed about the reliable information regarding smuggling of Narcotic Drugs and on getting nod of the driver of the bus, namely, Avtar Chand, the passengers were asked to show their identity cards. Accordingly, the petitioner herein also had showed his Aadhar Card and the Intelligence Officer asked him to alight from the bus with his red and grey coloured bag. 7. On the search of the bag of the petitioner, NCB Jammu found 24 packets, (boxes) of Spasmo Proxyvon Plus Tramadol based Capsules in which there were 18 strips of Spasmo Proxyvon Plus Tramadol based capsules and the total weight of the Tramadol Hydrochloride I.P 50 mg Capsules found to be 1.33056 kgs, a commercial quantity. Thereupon, entire codal formalities were completed and accordingly, the complaint was Bail App No. 240/2025 laid before the trial Court. That is how, the petitioner is now facing the trial. 8. The petitioner is mainly banking upon the so called deficiencies of the prosecution case and points out that the crime was pre-registered, safe custody is not established, there is non- compliance of the statutory provisions of NDPS Act like Section 52, 52-A and 55 of the NDPS Act along with some notifications and independent witnesses have not been associated etc. 9. Perusal of the trial Court record reveals that by now, out of 11 listed prosecution witnesses, 08 have been examined and thus, the trial is near completion. 10. Insofar as the ground of violation of mandatory provisions of Section 52, 52-A and 55 of the NDPS Act is concerned, it is suffice to say that the consistent latest approach of the Courts in such a situation is that even if any procedural irregularity or illegality found to have been conducted in search and seizure that would by itself does not make the entire evidence inadmissible, because in such a situation, the Court would have to consider all the circumstances and find out as to whether any serious prejudice has been caused to the accused. Bail App No. 240/2025 11. Now coming to the case on hand, although the petitioner has raised the shortcomings of the prosecution case but on going through the memo of petition, in none of the grounds, he has specifically pointed out the alleged deficiencies, rather, same fall in arena of wholesale assertion, therefore, at this stage and particularly, in the present proceedings, it is not legally permissible to go into the probative value of the evidence recorded so far, unless it is shown that it’s a case of no evidence, but on going through the trial Court record, it appears that the evidence recorded so far needs thrashing and appreciation which cannot be done at this stage. 12. Admittedly, the alleged recovery of Psychotropic Substance falls within the commercial quantity, thus, rigors of Section 37 comes into play. Therefore, unless the Court records the satisfaction on the twin requirements as envisaged under Section 37 of the NDPS Act, it is not legally permissible to grant concession of bail. 13. I am fortified in my view by 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 Bail App No. 240/2025 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 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 Bail App No. 240/2025 weeks from the date of receipt of this order…………………………………..” 14. In view of the settled proposition of law, particularly in absence of any factual foundation by the petitioner that the twin conditions of Section 37 of NDPS Act are satisfied, the petitioner is not entitled to bail at this stage. 15. Accordingly, the bail application is dismissed. (SHAHZAD AZEEM) JUDGE JAMMU 17.11.2025 Tarun/PS Whether order is speaking: Yes/No Whether order is reportable: Yes/Nos Tarun Kumar Gupta 2025.11.17 19:26 I attest to the accuracy and integrity of this document