IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 17.02.2025 Pronounced on: 21.02.2025 Bail App No.68/2024 BASHIR AHMAD DAR ... PETITIONER(S) Through: - Mr. Wajid Haseeb, Advocate. With Ms. Peer Fiza, Advocate. Vs. UT OF J&K THROUGH & ORS. …RESPONDENT(S) Through: - Mr. Syed Musaib, Dy. AG. 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 said vehicle got down from if and fled away. Out of these persons, mobile cellphone of one person of “Redmi” make P a g e | 2 Bail App No.68/2024 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 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 (the petitioner herein). 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 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 P a g e | 3 Bail App No.68/2024 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 and trial of the case was set into motion. During trial of the case, the petitioner applied for grant of bail before the learned trial court but his application came to be dismissed by the said Court in terms of order dated 12.06.2024. 5) It has been contended in the petition that the petitioner has been falsely implicated in the alleged crime and he is in custody since 18.04.2021. It has been further contended that most of the material witnesses have been examined by the trial court and nothing incriminating has been stated by these witnesses against the petitioner. It has also been submitted that co-accused Javaid Ahmad Khan has been granted bail on medical grounds whereas co-accused Aqib Ahmad Khan has also been enlarged on bail by the learned trial court vide order dated 01.11.2023. It has been further contended that the petitioner has P a g e | 4 Bail App No.68/2024 been booked only on the basis of the statements made by the co-accused before the police officials of the Naka Party and that nothing has been recovered from his possession. According to the petitioner, statements of the co-accused before the police are not admissible in evidence and, as such, there was no material on record before the trial court to decline prayer of the petitioner for grant of bail. 6) The respondent, in their reply, have narrated the facts alleged in the charge sheet and they have submitted that there is enough material on record of the challan to connect the petitioner with the alleged crime. It has been submitted that commercial quantity of contraband substance has been recovered from the possession of the co-accused and the material on record suggests that the petitioner was in league with the co-accused, therefore, in view of the bar contained in Section 37 of the NDPS Act, he is not entitled to bail at this stage. It has also been contended that the application of the petitioner for grant of bail has been rejected by the trial court and that there is no change of circumstances that would entitle him to grant of bail from this Court. 7) I have heard learned counsel for the parties and perused the record of the case including the trial court record. 8) At the very outset learned counsel for the respondents has raised a preliminary objection with regard to maintainability of the bail petition. It has been contended that successive bail applications are not maintainable and once the Court of first instance has rejected the bail P a g e | 5 Bail App No.68/2024 application of an accused, it is not open to him to file another application without any charge in circumstances. 9) The law on the aforesaid issue is well settled that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. Reliance in this regard is placed on the judgment of the Supreme Court in the case titled Gurcharan Singh & Ors vs State (Delhi Administration), AIR 1978 SC 179, which has been followed by the High Court of Bombay in the case of Devi Das Raghu Nath Naik v. State, (1987 Crimes (3) 363) and by this Court in the case of Amjad Dar vs. UT of J&K (Bail App No.23/2022 decided on 22.04.2022) 10) This Court being a Court superior to the Court of Additional Sessions Judge, Handwara, is, therefore, vested with jurisdiction to consider the bail application of the petitioner even if there is no change of circumstances since the date of dismissal of earlier bail application by the trial court. Even otherwise, if we have a look at the trial court record, after the dismissal of bail application of the petitioner, statements of two more prosecution witnesses have been recorded by the trial court. Thus, there has been change of circumstances after the dismissal of earlier bail application. 11) In the instant case, the commercial quantity of contraband has been recovered from the possession of the co-accused. So far as grant of bail in cases involving possession of commercial quantity of P a g e | 6 Bail App No.68/2024 contraband is concerned, the Court has to adhere to the procedure and guidelines provided under the provisions contained in Section 37 of the NDPS Act, which reads as under: “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 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.” From a perusal of the aforesaid provision, it is clear that in the cases involving offences relating to commercial quantity of contraband substances, in addition to the restrictions imposed by the Code of Criminal Procedure for grant of bail, certain other conditions have been imposed on the power of the Court to grant bail. These conditions P a g e | 7 Bail App No.68/2024 include a prior notice to the Public Prosecutor who has to be given an opportunity to oppose the bail application. Further the Court has to be satisfied that there are reasonable grounds for believing that the person seeking bail is not guilty of such offence and that he is not likely to commit any offence while on bail. 12) The expression “reasonable grounds” has been discussed by the Supreme Court in the case of Collector of Customs, New Delhi vs. Ahmadalieva Nodira, (2004) 3 SCC 549, in the following manner: “7.The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” 13) Again, in State of Kerala and others vs. Rajesh and others, (2020) 12 SCC 122, the Supreme Court has observed as under: “21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the P a g e | 8 Bail App No.68/2024 case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” 14) The Supreme Court has recently, while relying upon the aforesaid two judgments, in the case of Narcotics Control Bureau vs. Mohit Aggarwal, 2022 Live Law (SC) 613, observed as under: “14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.” 15) From the aforesaid analysis of the law on the subject it is clear that for the limited purpose of considering the bail application of the petitioner, this Court has to consider the material on record so as to ascertain whether such facts and circumstances are existing that can persuade the Court to believe that the accused person has not committed P a g e | 9 Bail App No.68/2024 the offence for which he has been booked. The Court has to be satisfied that there are credible and plausible grounds for believing that the accused is not involved in the offence. 16) In the light of the foregoing analysis of law on the subject, let us now consider the material on record. As per case of the prosecution, on the date of the incident, the car in which the petitioner and the co- accused were travelling, was intercepted by the police. Two accused including the petitioner got down from the car and fled away from the spot. The police party came to know about the identity of the petitioner and co-accused Zahoor Ahmad Bhat upon questioning two co-accused Mohammad Yousuf Bhat and Javaid Ahmad Khan. The witnesses who have deposed about this fact are members of the Naka Pary who happen to be the police officials. 17) So far as accused Zahoor Ahmad Bhat is concerned, as per prosecution case, while running away from the spot, he left behind his mobile cellphone that was recovered by the police and after investigation of the case, it was found to be under the use of accused Zahoor Ahmad Bhat but so far as the petitioner is concerned, neither any contraband nor any object connecting him to the other accused has been seized by the investigating agency during the investigation of the case. He has been implicated only on the basis of statements of co- accused made before the police officials. These police officials have also made similar statements before the court during the trial of the case. The question that arises for consideration is as to whether the P a g e | 10 Bail App No.68/2024 petitioner can be connected with the alleged crime on the basis of the statements made by the co-accused to the police officials. 18) The law on the aforesaid subject is very clear. The confessional statement of a co-accused has been time and again held to be inadmissible in evidence in view of the provisions contained in Section 25 and 26 of the Evidence Act. The only exception to inadmissibility of a statement made by an accused before a police official is Section 27 of the Evidence Act, which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, as relates distinctly to the fact thereby discovered, is admissible in evidence. Thus, a confessional statement made by an accused before the police which relates distinctly to the fact thereby discovered is only admissible in evidence. The Supreme Court has repeatedly held that confessional statement of a co-accused is inadmissible in evidence. In this regard reference can be made to the ratio laid down by the Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu, 2020 SCC Online SC 882. The same position has been reiterated by this Court in the case of Rayees Ahmad Dar vs. UT of J&K (Bail App No.05/2022 decided on 21.05.2022). 19) In the instant case, nothing has been recovered from the possession of petitioner nor any fact has been discovered pursuant to the statements made by the co-accused before the police officials at the time of interception of their vehicle by the Naka Party. The recovery of P a g e | 11 Bail App No.68/2024 the contraband was made by the police on spot and not pursuant to any information given by the co-accused. Thus, prima facie, it appears that the petitioner could not have been implicated in the case on the basis of confessional statements of co-accused Zahoor Ahmad Bhat and Javaid Ahmad Khan. 20) It has been alleged in the charge sheet that as per Call Detail Record, all the accused were in contact with each other. Copies of Call Detail Record form part of the charge sheet. However, a perusal of the challan would reveal that the investigating agency has not collected any material to show as to which cell number was under the use of the petitioner as the same would have enabled this Court to frame a prima facie opinion as to whether or not the petitioner was in contact with the co-accused. In the absence of any such material, the call detail records placed on record by the prosecution is of no use to its case against the petitioner. 21) From the foregoing discussion, there appear to be reasonable grounds for believing that the petitioner/accused is not guilty of the alleged offences. There is nothing on record to show that the petitioner has any criminal antecedents or that in previous past he has been involved in similar offences. No material has been brought to the notice of this Corut to suggest that in case the petitioner is admitted to bail, he is likely to commit similar offences while on bail. P a g e | 12 Bail App No.68/2024 22) Apart from the above, a perusal of the trial court record shows that most of the material witnesses have been examined in the case and only three witnesses, out of 15 listed witnesses, are to be examined. The petitioner has been in custody for the last more than three years and two co-accused have already been enlarged on bail. On this ground also, the petitioner is entitled to grant of bail. 23) For the foregoing reasons, the application is allowed and the petitioner is admitted to bail subject to the following conditions: (i) That he shall furnish bail bond and personal bond in the amount of Rs.50,000 (rupees fifty thousand) with one surety of the like amount to the satisfaction of the trial court; (ii) That he shall appear before the trial court on each and every date of hearing; (iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the trial court; (iv) That he shall not tamper with the prosecution witnesses/evidence; (v) That he shall not indulge in similar activities; 24) Any observation made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as expression of opinion on the merits of the case. 25) The bail application shall stand disposed of. (SANJAY DHAR) JUDGE Srinagar, 21.02.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 21.02.2025 12:41