HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Case: Bail App No. 168/2024 Reserved on: 19.05.2025. Pronounced on : 31.05.2025 Sikander Hayat ….Petitioner/Appellant(s) Through :- Mr. Ajay Sharma Advocate. Mr. Shakoor A. Malik Advocate. V/s UT of Jammu and Kashmir and another Through :- Mr. Eishan Dadeechi G.A. CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1 By this petition, the petitioner-Sikander Hayat has invoked the jurisdiction of this Court under Section 483 of BNSS, 2023, seeking grant of bail in connection with FIR No. 100/2024 for offences under Sections 8/21/22/25/27- A/29 NDPS Act, registered with Police Station, Poonch 2. As per case of the prosecution, on 17.05.2024, PSI Naresh Kumar, ASI Tariq Khan, and other officials were on patrolling duty in Bhainch and its adjoining areas. At about 1530 hours, upon reaching Dhalera on the National Highway, a suspicious vehicle (Eeco) bearing registration No. JK12C-0433 attempted to flee upon seeing the police. The vehicle was intercepted, and during questioning, the driver identified himself as Maqsood Hussain Shah, resident of Nangali, Tehsil Haveli, District Poonch, and the co-driver as Asif Hussain Shah. During their personal search, approximately 2-3 grams of heroin-like substance, wrapped in silver foil, was recovered from the right pocket of Maqsood Hussain 2 Shah‟s trousers, and a similar quantity was recovered from the right pocket of Asif Hussain Shah. On the basis of this recovery, the impugned FIR for offences under Sections 8/21/22/25/29 came to be registered. During the course of investigation, the Investigating Officer (I.O) visited the spot, photographed the scene, prepared a site plan, and seized the narcotics and the vehicle. Upon weighing, the substance recovered from Maqsood Hussain Shah was found to weigh 3.29 grams (including foil) and was marked as packet “A”. The substance recovered from Asif Hussain Shah weighed 2.56 grams and was marked as packet “B”. Accordingly, seizure memos was prepared on the spot in presence of witnesses. I.O then sealed both the packets „A‟ and „B‟ on the spot and recorded the statements of witnesses under Section 161 CrPC on the spot. 3 In view of the site plan, seizure memos, statements of the witnesses, and other circumstantial evidence, the accused persons were found to have committed offences under Sections 8, 21, 22, 25, and 29 of the NDPS Act. The Investigating Officer (I.O.) arrested both the accused persons, i.e., the driver and co-driver of the vehicle in question. It is mentioned in the police report that during the investigation, both the aforesaid accused persons stated that the petitioner, Sikander Hayat, used to provide them commission on every sale, as they did not own any vehicle. He allegedly facilitated them by providing his Eeco car. On the basis of the statements of the co-accused, apart from the other offences, the offence under Section 27-A of the NDPS Act was found to be made out against the petitioner, and he was subsequently arrested on 20.06.2024. Accordingly, the challan has been presented before the Court of the learned Principal Sessions Judge, Poonch. 4 It appears that the offence under Section 27-A of the NDPS Act was not initially included in the impugned FIR, and the same was added later on the 3 basis of the statements of the co-accused. It further appears that prior to the filing of the challan, the co-accused of the petitioner were granted bail by the Court of the learned Chief Judicial Magistrate, Poonch. However, the bail application of the petitioner was rejected by the Court of the learned Principal Sessions Judge, Poonch, on the ground that the investigation of the case was still at its infancy. 5 The petitioner has sought bail on the ground that there is no independent evidence against him, and he has been implicated solely on the disclosure statements of the co-accused, which are inadmissible under law. He contends that the co-accused have already been granted bail, and on the ground of parity, he too should be extended the same relief. He undertakes to abide by any conditions imposed by the Court. 6 The respondents, in their reply, reiterate the facts of the case and contend that the offence committed by the petitioner is heinous and falls within the purview of Section 37 of the NDPS Act, thereby barring grant of bail. 7 I have heard learned counsel for the parties and perused the record, including the trial Court record called in terms of order dated 28.10.2024. 8. It has been submitted by the learned counsel for the petitioner that only a small quantity of contraband is alleged to have been recovered from the possession of the co-accused, and as such, the rigor of Section 37 of the NDPS Act is not applicable to the case of the petitioner. He has further submitted that neither the contraband, nor any cash has been recovered from the possession of the petitioner. As per the prosecution case, the contraband was recovered from the possession of the co-accused alone. Therefore, the petitioner cannot be implicated in the present FIR. He has further argued that there is no material before the 4 Investigating Agency to show that the petitioner conspired with the co-accused. 9 It is true that the quantity of contraband recovered from the co-accused falls within the category of small quantity, and it is also a fact that, according to the prosecution case, the contraband was recovered by the police from the possession of the co-accused, who was allegedly carrying it. However, as per the prosecution case, the co-accused was engaged in the illicit trade of narcotics in conspiracy with the petitioner, and the petitioner was involved in financing the said illicit trade. For this reason, apart from other offences, the petitioner has also been booked under Section 27A of the NDPS Act. 10. Now the question arises as to whether there is any material on record to show that the petitioner had conspired with the co-accused and to indulge in financing of illicit trade of narcotics. 11 After going through the record received from the trial Court, it cannot be said that the case against the petitioner is frivolous. As per the information furnished by the learned counsel for the respondents, the investigation has been completed and the charge-sheet has been filed before the trial Court. However, the trial is yet to commence. This Court refrains from delving into the merits of the matter in detail at this stage, so as not to prejudice the case of either party at the time of consideration of the charge. 12 In the present case, the petitioner has been implicated for harbouring offenders and financing illegal drug activities. The allegations against him are not of mere association but of active facilitation, as he is alleged to have provided the vehicle used for transporting narcotics and paid commission to the arrested co-accused. The offence under Section 27A of the NDPS Act is grave in nature 5 and falls within the category of offences to which the rigors of Section 37 of the Act apply. 13 While it is true that no contraband has been recovered from the petitioner directly, the Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal, (2022) 9 SCC 714 has held that non-recovery of contraband from the accused is not always decisive. The role attributed to the accused, the nature of the conspiracy, and the supporting material must also be examined. As regards the argument that the implication is based solely on the disclosure statements of co-accused, the Supreme Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 has held that confessional statements made to police officers under Section 67 of the NDPS Act are inadmissible in the trial unless corroborated by independent evidence. However, in the present case, the petitioner‟s role is corroborated by the seizure of his vehicle, used in the commission of the offence, and supported by circumstantial evidence such as lack of ownership of vehicle by co-accused. 14 On the question of parity, it is to be noted that that the co-accused were found in possession of small quantity, attracting lesser punishment. On the other hand, the petitioner faces charges under Section 27-A of NDPS Act, which carries a minimum sentence of 10 years and falls under the strictest classification under the NDPS Act. Mere parity cannot override the statutory restrictions under Section 37 of the Act, especially when the nature of role and charges are significantly different. The submission that the petitioner has been in incarceration for about one year, though noted, is of limited significance in the context of offences under the Narcotic Drugs and Psychotropic Substances Act. It is well settled that the NDPS Act is a special legislation dealing with grave offences that pose a serious threat to public health and order. The Hon‟ble Supreme Court in 6 Union of India v. Niyazuddin (2018) and State of Kerala v. Rajesh (2020) has categorically held that mere long incarceration is not a ground for bail under the NDPS Act, particularly when rigor of Section 37 applies. The Supreme Court emphasized that individual liberty must be balanced against the interest of society and the object of the legislation. Therefore, in NDPS matters involving serious allegations, one year of incarceration is not considered excessive or unusual, and cannot, by itself, justify the grant of bail. Accordingly, the petitioner‟s custody of about one year, without more, is insufficient to warrant release under the settled legal position and the statutory framework of the NDPS Act. 15 Having regard to the fact that, based on the investigation conducted by the Investigating Agency, offence under Section 27A of the NDPS Act appears to be established against the petitioner/accused, the rigor of Section 37 of the NDPS Act is attracted in the present case. Section 37 of the NDPS Act provides that a person accused of the offences mentioned therein including an offence under Section 27A NDPS Act shall not be released on bail unless the following mandatory conditions are satisfied: (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) the accused is not likely to commit any offence while on bail. 16 In the instant case, there are no justifiable or reasonable grounds to believe that the petitioner/accused is not guilty of the offence under Section 27A of the NDPS Act. Therefore, the bar to the grant of bail under Section 37 of the NDPS Act is fully attracted. 17. In view of the above discussion, and considering the seriousness of the allegations, the statutory bar under Section 37 of the NDPS Act, and the absence of any compelling material to satisfy the twin conditions stipulated 7 therein, this Court does not find any ground to enlarge the petitioner on bail at this stage. Accordingly, the bail application is rejected. The petitioner shall, however, be at liberty to move a fresh bail application upon any change in the circumstances. 18. Anything said in this order shall not be taken as expression of opinion on merits of the case. (MOKSHA KHAJURIA KAZMI) JUDGE Jammu 31 .05.2025 Sanjeev Whether order is reportable:Yes/No