Bail App No.123/2024 Item No.37 Regular List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Bail App No.123/2024 SAMEER AHMAD MALIK ...PETITIONER(S) Through: - M/s: Tahir Ahmad Bhat & Abdul Wakeel Koka, Advocate. Vs. UT OF J&K …RESPONDENT(S) Through:- Mr. Faheem Nissar Shah, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT(ORAL) 15.07.2025 1) The petitioner has invoked jurisdiction of this Court under Section 483 of BNSS seeking bail in a case arising out of FIR No.90/2023 for offences under Section 8/21 of NDPS Act registered with Police Station, Kulgam, which is pending before the Court of Principal Sessions Judge, Kulgam (hereinafter referred to as “the trial court”) 2) As per the prosecution case, on 5th May, 2023, Police Station, Kulgam, received a docket from Head Constable Farooq Ahmad for registration of FIR. In the docket it was mentioned that the aforenamed police official along with other police personnel, while performing patrolling duty, spotted a person, carrying a Nylon bag, moving in suspicious circumstances. The said person was proceeding from Bail App No.123/2024 Adapora towards Kulgam on foot. The police chased the said person and nabbed him near Adapora Crossing. Upon questioning, the person disclosed his name as Sameer Ahmad Malik, the petitioner herein. Upon his search of the Nylon bag, 11 bottles (100 ml each) of “Cocray Codeine Phosphate” were recovered. The petitioner could not give any explanation with regard to possession of the recovered drugs and, in fact, it was found that the petitioner was involved in illicit trade of drugs. The petitioner was taken into custody and investigation of the case was set into motion. 3) During investigation of the case, the seized bottles of recovered drugs were sealed and the same were produced before the Executive Magistrate in whose presence the sample was drawn and sealed and the remaining bottles were also sealed. The sealed sample of seized drugs was sent to FSL for examination. As per report of the chemical examiner, the sample was found to contain “Codeine Phosphate”, a narcotic drug. The statements of the witnesses under Section 161 of Cr. P. C were recorded and after investigation of the case, offences under Section 8/21 of NDPS Act were found established against the petitioner, whereafter challan was laid before the learned trial court. 4) Vide order 11.11.2023, learned trial court framed charges for offences under Section 8/21 of NDPS Act against Bail App No.123/2024 the petitioner who denied the charges, 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 nine witnesses listed 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 petitioner in terms of its order dated 29.07.2024. 5) The petitioner has sought bail on the grounds that all the prosecution witnesses listed in the challan have already been examined and now the case has been set down for recording statement of the accused/petitioner under Section 313 of Cr. P. C. It has been contended that the evidence recorded before the trial court does not make out a case against the petitioner and from a perusal of the statements of the prosecution witnesses, it can safely be stated that the petitioner is not guilty of the offence for which he has been charged. It has been contended that the Investigating Agency has not drawn sample of the seized drug from all the 11 bottles but has sent only one bottle of drug to FSL for its examination. Thus, it cannot be stated that other ten bottles were also containing Codeine Phosphate. On this ground, it is being contended that it cannot be stated that the petitioner was found in possession of commercial quantity of Bail App No.123/2024 the contraband drugs. The petitioner has further contended that there is nothing on record to suggest that the petitioner has any previous history of committing similar offences or that he is likely to commit similar offences. 6) The respondent-State has resisted the bail application by filing reply thereto. In its reply, the respondent-State, besides reiterating the contents of the challan, has contended that the petitioner is involved in a heinous crime, as such, he does not deserve to be enlarged on bail. It has been further submitted that if the petitioner is extended the concession of bail, it will have an adverse impact on the society at large. It has been further submitted that there are reasonable grounds for believing that the petitioner would jump the concession of bail if granted by this Court. According to the respondents all the witnesses examined have supported the prosecution story, therefore, there is no case for grant of bail in favour of the petitioner. 7) I have heard learned counsel for the parties and perused record of the case. 8) 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: Bail App No.123/2024 (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; (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; 9) 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; Bail App No.123/2024 (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.” 10) 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. 11) In the light of aforesaid legal position, let us now consider the facts of the present case. According to the petitioner, the evidence led by the prosecution prima facie goes on to show that he is not guilty of offence relating to possession of commercial quantity of contraband drugs. In Bail App No.123/2024 this regard, learned counsel for the petitioner has taken me through the statements of nine prosecution witnesses that have been recorded during trial of the case 12) Before testing the merits of the contention raised by learned counsel for the petitioner, 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 consideration of the bail application after meticulous examination and appreciation of the evidence on record, is impermissible in law. 13) The main ground that has been urged by learned counsel for the petitioner for seeking bail is that the Investigating Agency has not drawn samples from all the 11 bottles but has sent only one bottle to FSL for expert examination. It has been submitted that in the absence of any evidence to show that other ten seized bottles also contained Codeine Phosphate, it cannot be stated that the petitioner was found to be in possession of commercial quantity of contraband drug. Bail App No.123/2024 14) In the above context, a perusal of the trial court record would reveal that on 06.05.2023, a police official from Police Station, Kulgam, produced a sealed parcel marked as “A” containing 11 bottles (100 ml each) before the Executive Magistrate, Kulgam, for breaking open the seals and for extracting sample. The communication of the Executive Magistrate, 1st Class, Kulgam, EXPW-The, reveals that the parcel was opened in the Court of Executive Magistrate, out of which one bottle (100 ml) was taken and resealed in a separate parcel marked as ‘A1” whereas the remaining bottles were kept in the custody of SHO concerned. There is no mention in the communication, that has been addressed by the Executive Magistrate, 1st Class, Kulgam, to the Director, FSL, Srinagar, that samples were drawn from each of the 11 bottles produced by the police before the Executive Magistrate. The language of the communication indicates that only one, out of 11 seized bottles, was resealed and thereafter sent to FSL for expert opinion and the other ten bottles were handed over back to the Investigating Agency. 15) The statement of the Executive Magistrate recorded by the trial court on 22.11.2024 also indicates that out of 11 bottles produced before him, one bottle was taken out and resealed whereas other ten bottles, after sealing, were handed over back to the Investigating Agency. From this, Bail App No.123/2024 prima facie, it appears that the Investigating Agency has not drawn samples from all the 11 seized bottles but has sent only one seized bottle for examination of its contents by the FSL. Thus, there is no opinion of the FSL expert in respect of other ten recovered bottles. 16) Learned counsel for the petitioner has contended that in the absence of opinion of the FSL with regard to remaining ten recovered bottles, it cannot be stated that the petitioner was found to be in possession of commercial quantity of contraband drugs. There appears to be merit in his aforesaid contention. 17) In view of the what has been discussed hereinbefore, it appears that there are reasonable grounds for believing that the petitioner is not guilty of offence of possessing commercial quantity of contraband drugs. The respondents have not placed on record any material to show that the petitioner has any previous history of having indulged in the illicit trade of narcotic drugs nor have they placed on record any material to show that in case he is admitted to bail, he is likely to commit similar offences. Thus, the petitioner has succeeded in carving out a prima facie case for grant of bail in his favour. 18) Apart from the above, the petitioner is in custody since 05.05.2023, meaning thereby he has spent more than two Bail App No.123/2024 years in custody. The trial of the case is almost complete. Therefore, in case the petitioner is enlarged on bail, there is no scope for him to tamper with the prosecution witnesses. 19) For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions: (i) That he shall furnish personal bond in the amount of Rs.50,000/ with two sureties of the like amount to the satisfaction of the learned trial court; (ii) That he shall appear before the learned trial court on each and every date of hearing. (iii) That he shall not leave the territorial limits of the Union Territory of J&K without prior permission of the learned trial court; (iv) That he shall not intimidate or tamper with prosecution witnesses/evidence. (v) That he shall not indulge in similar activities; 20) The bail application shall stand disposed of. (SANJAY DHAR) JUDGE Srinagar, 15.07.2027 “Bhat Altaf-Secy” Whether the JUDGMENT is reportable: Yes/No