Bail App No.191/2025 c/w Bail App No.177/2025 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 17.11.2025 Pronounced on: 21.11.2025 Uploaded on: 21.11.2025 Whether the operative part or full judgment is pronounced: Full Bail App No. 191/2025 c/w Bail app No.177/2025 ROUF AHMAD GANIE RAYEES AHMAD WANI ...PETITIONER(S)/APPELLANT(S) Through: - Mr. Usman Gani Advocate (in Bail App No.191/2025), Mr. Mubashir Mushtaq, Advocate (in Bail App No.177/2025) Vs. UT OF J&K ...RESPONDENT(S) Through: - Mr. Zahid Qais Noor, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) Through the medium of present order, afore-titled two bail applications, one filed by petitioner Rouf Ahmad Ganie and other filed by petitioner Rayees Ahmad Wani, are proposed to be decided. 2) Both the petitioners have invoked jurisdiction of this Court under Section 483 of BNSS seeking bail in a case arising out of FIR No.74/2023 for offences under Section Bail App No.191/2025 c/w Bail App No.177/2025 8/21, 29 of NDPS Act registered with Police Station, Qazigund Kulgam, which is stated to be pending before the Court of learned Special Judge (NDPS Cases), Anantnag (hereinafter referred to as “the trial court”). 3) As per case of the prosecution, on 25.04.2023, Police Personnel of Police Station, Qazigund, while on patrolling duty near Nasoo Badragund Crossing, had laid a Naka over there. They spotted two persons proceeding in suspicious circumstances and each of these two persons was carrying a polythene bag. On spotting the police party, these persons tried to slip away but they were nabbed by the police. Upon search of polythene bags, bottles of Codeine were recovered from the bags that were in possession of these two persons. The nabbed persons identified themselves as petitioner Rouf Ahmad Ganie and petitioner Rayees Ahmad Wani. The police registered FIR No.74/2023 for offences under Section 8/21 NDPS Act and started investigation of the case. 4) During investigation of the case, 38 bottles of Codeine, that were recovered from the petitioners, were seized. While 20 bottles Codeine (100 mal each) were recovered from the possession of petitioner Rayees Ahmad Wani, 18 bottles of Codeine (100 ml each) recovered from the possession of petitioner Rouf Ahmad Gnaie. After drawing samples from Bail App No.191/2025 c/w Bail App No.177/2025 these recovered bottles, the same were sent to FSL, Srinagar, for chemical analysis. After investigation of the case, offences under Section 8/21, 29 of NDPS Act were found established against the petitioners and the challan was laid before the learned trial court. 5) Vide order 20.09.2023, the learned trial court framed charges for offences under Section 8(c) read with Section 21(c), 22(c) and 29 of NDPS Act against the petitioners. The petitioners denied the charges and, 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 eight witnesses, out of ten witnesses cited 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 petitioners vide order dated 13.06.2025. 6) The petitioners have sought bail on the grounds that most of the prosecution witnesses listed in the challan have already been examined and their statements are contradictory in nature. It has been submitted that trial of the case is going on at snail’s pace and it is going to take considerable period of time to examine the remaining witnesses in the case. It has been submitted that the mother Bail App No.191/2025 c/w Bail App No.177/2025 of one of the petitioners’ is suffering from serious ailments and is presently under treatment. It has been further contended that the petitioners have been implicated in a false case and no recovery was, in fact, effected from them, which is discernible from a careful perusal of the statements of the prosecution witnesses. It has also been contended that only two bottles, out of 38 recovered bottles of codeine, have been sent to FSL for chemical analysis whereas remaining 36 bottles have not been sent for chemical analysis. On this ground, it has been submitted that at best it can be a case of possession of small quantity of contraband substance by the petitioners, as such, the embargo contained in Section 37 of the NDPS Act is not applicable to this case. 7) It has been contended that there are material contradictions in the statements of the prosecution witnesses, inasmuch as the Executive Magistrate has categorically stated that he was not present on spot at the time of alleged seizure whereas the other prosecution witnesses have stated that the Executive Magistrate had accompanied them on spot. It has been further contended that there is no evidence with regard to the safe custody of the samples and that there has been violation of mandatory Bail App No.191/2025 c/w Bail App No.177/2025 procedural safeguards contained in Section 52-A and 55 of the NDPS Act. 8) The respondent-State has resisted the bail petitions by filing it reply thereto. In the reply, the respondent-State, besides reiterating the allegations made in the charge sheet against the petitioners, has submitted that the petitioners are local residents and if they are enlarged on bail, they may influence the witnesses and tamper with the prosecution evidence. It has been further submitted that the petitioners have been found to be in possession of commercial quantity of contraband substance, as such, unless they are able to satisfy the conditions contained in Section 37 of the NDPS Act, they cannot be enlarged on bail. 9) I have heard learned counsel for the parties and perused record of the case. 10) 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: (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; Bail App No.191/2025 c/w Bail App No.177/2025 (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; 11) 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; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and Bail App No.191/2025 c/w Bail App No.177/2025 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.” 12) 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. 13) The Supreme Court has, in the case of Narcotics Control Bureau vs. Kashif, (2024) 11 SCC 372 after considering the afore-quoted provisions contained in Section 37 of the NDPS Act, made the following observations: “There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable within minimum sentence of ten years, the accused shall generally Bail App No.191/2025 c/w Bail App No.177/2025 be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions.” 14) In the light of aforesaid legal position, let us now examine the facts of the present case. According to the petitioners, the evidence led by the prosecution prima facie goes on to show that they are not guilty of offence relating to possession of commercial quantity of contraband drugs. In this regard, learned counsel for the petitioners have taken me through the statements of prosecution witnesses who have been examined during trial of the case. 15) Before testing the merits of the contention raised by learned counsels for the petitioners, 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 Bail App No.191/2025 c/w Bail App No.177/2025 consideration of the bail application after meticulous examination and appreciation of the evidence on record, is impermissible in law. 16) The main ground that has been urged by learned counsels for the petitioners for seeking bail is that the Investigating Agency has not drawn samples from all the 38 seized bottles but has sent only two bottles to FSL for expert examination. It has been submitted that in the absence of any evidence to show that other 36 seized bottles also contained Codeine Phosphate, it cannot be stated that the petitioners were found to be in possession of commercial quantity of contraband drug. 17) If we have a look at the trial court record, vide communication dated 26.04.2023 addressed by SHO, Police Station, Qazigund to the Executive Magistrate, 1st Class, Vessu, 20 bottles (100 ml each) of Codeine recovered from one accused were sealed in Packet ‘A’ whereas 18 bottles (100 ml each) recovered from other accused were sealed in Packet ‘B’ and the same were produced before the Executive Magistrate who extracted two bottles as samples from each packet for sending the same to the FSL. The Executive Magistrate vide his communication dated 01.05.2023 forwarded the samples to the Director, FSL, Srinagar. In the Bail App No.191/2025 c/w Bail App No.177/2025 said communication it is recorded that two sealed bags produced by the police were opened. 20 bottles (100 ml each) bearing batch No.VHL2302011 were found in exhibit “A” whereas 18 bottles (100 ml each) bearing batch No.VHL2302011 were found in exhibit “B”. It is further recorded in the communication that one bottle was taken from exhibit “A” whereas another bottle was taken out from exhibit “B”. These samples were sealed and sent to FSL for chemical analysis. The report of the FSL is also on record, which shows that from one packet, bottle containing sunset yellow coloured solution measuring 100 ml with batch No.VHL2302011 was found and the other sample was also found containing sunset yellow coloured solution measuring 100 ml with batch No.VHL2302011. The evidence led by the prosecution is also to the same effect. 18) From the above it is clear that only two bottles out of two different lots of bottles recovered from the two accused were sent to FSL for examination. It is also important to note that all the recovered bottles were sealed and they were bearing the same batch number i.e. VHL2302011. 19) The question that arises for determination is as to whether in these circumstances, it was obligatory for the Investigating Agency to send samples from all 38 recovered Bail App No.191/2025 c/w Bail App No.177/2025 bottles to FSL for chemical analysis. The answer to the said question is an emphatic ‘no’ because all the bottles were containing similar solution and were pertaining to the same batch. Therefore, one of the sealed bottles from the recovered lot would, prima facie, constitute representative sample of the recovered bottles. 20) The Supreme Court has, in the case of Vijendrajit Ayodhya Prasad Goel vs. State of Bombay, AIR 1953 SC 247, held that when there is evidence on record to show that all the bottles recovered by the police contained the same stuff, it is not necessary to draw sample from each of the recovered bottles to establish that the recovered stuff is a contraband substance. In the present case, as already stated, the whole of the recovered stuff pertained to the same batch. Therefore, there was no need for the Investigating Agency to draw samples from all the 38 recovered bottles. 21) Learned counsels for the petitioners have relied upon the judgment of this court in the case of Sameer Ahmad Malik vs. UT of J&K (Bail App No.123/2024 decided on 15.07.2025) to support their contention that once only one or two bottles out of the recovered bottles are sent for chemical analysis, it cannot be stated that the accused were found to be in possession of commercial quantity of Bail App No.191/2025 c/w Bail App No.177/2025 contraband drug. It is to be noted that facts of the aforesaid case were different, inasmuch as in the said case there was no evidence on record case to show that the recovered bottles belonged to the same batch number. The ratio laid down in the said case would, therefore, not get attracted to the present case. 22) The next contention that has been raised by learned counsel for the petitioners is that there is contradiction in the statements of police witnesses and Executive Magistrate on an essential aspect of the matter. It has been contended that while the Executive Magistrate has stated that he was not present on spot at the time of recovery and sealing of the recovered stuff, the police officials have stated that he was present on spot. 23) It is true that there is contradiction between the statements of some of the police witnesses and the statements of the Executive Magistrate on this aspect of the matter but the effect of this contradiction is not of such a vital nature as would persuade this Court to hold at the time of consideration of bail application of the petitioners that they are not guilty of the offence for which they have been charged. The effect of the said contradiction on the present case can be considered only at the time of final disposal of Bail App No.191/2025 c/w Bail App No.177/2025 the case, as meticulous analysis of the evidence on record has to be avoided at the stage of considering a plea for grant of bail. 24) From the foregoing discussion, it is clear that the petitioners have not been able to satisfy this Court at this stage that there are reasonable grounds for believing that they are not guilty of the alleged offences. Since the provisions contained in Section 37 of the NDPS Act are mandatory in nature, as such, the petitioners cannot be granted bail. 25) The petitions lack merit and are dismissed accordingly. (Sanjay Dhar) Judge SRINAGAR 21.11.2025 “Bhat Altaf-Secy” Whether the Judgement is reportable: Yes/No