1 | P a g e Bail App 43/2026 Serial No.22 Suppl. Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU (Through Virtual Mode) Bail App 43/2026 CrlM(443/2026) IMRAN ALI AGED 27 YEARS S/O SHAMASH DIN R/O DADWARA TEHSIL BILLAWAR DISTRICT KATHUA PRESENTLY LODGED IN DISTRICT JAIL KATHUA …Petitioner(s) Through: Mr. Aseesh Singh Kotwal, Advocate with Mr. Pankaj Basotra, Advocate Vs. 1. UNION TERRITORY OF JAMMU AND KASHMIR THORUGH SUPERINTENDENT DISTRICT JAIL KATHUA 2. STATION HOUSE OFFICER POICE STATION BILLAWAR DISTRICT KATHUA ...Respondent(s). Through: Mr. Banu Jasrotia, GA vice Mr. Suneel Malhotra, GA CORAM: HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE ORDER 17.07.2026 1. Through the medium of this successive bail petition, the petitioner, Imran Ali S/o Shamash Din, R/o Dadwara, Tehsil Billawar, District Kathua, seeks his enlargement on bail in case FIR No. 144/2024 dated 27.10.2024 under Sections 8/21,22,25,27-A,29 of the NDPS Act, registered at Police Station Billawar, District Kathua, on the 2 | P a g e Bail App 43/2026 main grounds that he is innocent and is not directly or indirectly connected with the commission of the alleged crime. That he had already approached the learned trial Court, i.e., the Court of learned Additional Sessions Judge, Kathua, seeking the concession of bail in his favour, but his prayer was declined vide order dated 19.02.2026 passed by the learned trial Court on his bail petition dated 11.12.2025. That he was arrested in the case on false and frivolous grounds way back on 27.10.2024 and since then he has been continuously under detention in the case FIR. That the trial of the case is going on and is at the stage of recording of prosecution evidence. That since he has been continuously facing incarceration in the case FIR for the last more than one and a half years, as such, his liberty stands curtailed. That the trial of the case has been going on since 26.12.2024 and the same is likely to take much more time for its conclusion as most of the prosecution witnesses are yet to be examined. That a squantity of 4.12 grams of heroin is alleged to have been recovered from his possession on the date of the alleged occurrence, i.e., 27.10.2024, which falls under the category of small quantity. That the co-accused, Mohd. Saleem, with whom he is alleged to have shared the conspiracy, has already been enlarged on bail in the matter, from whom a quantity of 6.42 grams of heroin was allegedly recovered. That even if he is alleged to have committed the offence under conspiracy, then the total quantity recovered from him and the co-accused amounts to about 11 grams, which is much below the commercial quantity, i.e., 250 grams. That the allegations of 3 | P a g e Bail App 43/2026 financing illicit traffic in narcotic drugs and psychotropic substances do not appear to be borne out from the facts and circumstances of the case. That the Investigating Officer (IO) of the case, during the course of investigation, despite prior registration of the FIR, failed to comply with the mandatory provisions of the NDPS Act. That the search and seizure, as alleged, was not conducted in accordance with the procedure prescribed under the NDPS Act. That his prolonged detention amounts to his pre-trial conviction, which is violative of his fundamental right to life and personal liberty. That he shall abide by any conditions that may be imposed by this Court while enlarging him on bail. 2. The respondent-UT has filed its objections in the matter and the instant bail petition has been resisted on the grounds that the petitioner is involved in the commission of heinous anti-social offences punishable under the NDPS Act. The petitioner is alleged to have been indulging in the illicit trade in narcotic drugs and psychotropic substances under a conspiracy with the financing of such trade. A narcotic substance, namely heroin, weighing 4.12 grams, is alleged to have been recovered from his possession, with the recovery of a further 6.42 grams of the same substance from the co-accused, Mohd. Saleem. The trial of the case is reported to be going on, and charges are reported to have already been framed against the petitioner. It is contended that the petitioner, being involved in the commission of an offence punishable under Section 27-A of the NDPS Act, cannot be enlarged on bail in view of the 4 | P a g e Bail App 43/2026 embargo placed by Section 37 of the NDPS Act. The respondent has further apprehended that the release of the petitioner may send a wrong signal to society and shall encourage like-minded persons, with the petitioner-accused being tempted to repeat the commission of the crime. 3. I have heard learned counsel for the parties, who reiterated their respective stands already taken in the bail petition and the memo of objections. I have perused the order dated 19.02.2026 passed by the learned trial Court while declining bail to the petitioner. The trial Court record has also been perused. 4. Keeping in view the perusal of the instant successive bail application, the memo of objections, the trial Court record, and the consideration of the rival arguments advanced at the Bar on both sides, this Court, in the facts and circumstances of the case, is of the opinion that it would be in the ends of justice in case the petitioner- accused, namely Imran Ali S/o Shamash Din, R/o Dadwara, Tehsil Billawar, District Kathua, is admitted to bail in case FIR No. 144/2024 dated 27.10.2024 under Sections 8/21,22,25,27-A,s29 of the NDPS Act, registered at Police Station Billawar, District Kathua, subject to some reasonable terms and conditions. 5. Admittedly, the provisions of Section 37 of the NDPS Act impose a bar on the grant of bail to an accused involved in the commission of offences punishable under Sections 19, 24 or 27-A of the Act, as also in offences involving commercial quantity, unless the Public 5 | P a g e Bail App 43/2026 Prosecutor has been given an opportunity to oppose the application for such release and, 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. Undoubtedly, the aforesaid limitations under Section 37 of the Act are in addition to the limitations already laid down under the Code of Criminal Procedure/BNSS or any other law for the time being in force governing the grant of bail. The quantity of heroin alleged to have been recovered from the petitioner-accused as well as from the co- accused is intermediate and much below the commercial quantity fixed at 250 grams for the contraband in question. So far as the involvement of the petitioner under Section 27-A of the NDPS Act is concerned, this Court, in the facts and circumstances of the case, having regard to the allegations against the petitioner-accused, is not of the opinion that there appear reasonable grounds for believing that he is involved in the said offence. 6. Apart from the statutory bar, if any, two paramount considerations viz. likelihood of accused fleeing from justice and tampering with the prosecution evidence relate to the ensuring of a fair trial of the case in a court of law. It is essential that due and proper appreciation and weightage should be bestowed on these factors apart from others. The grant of bail or the denial of the same falls within the purview of the judicial discretion meant to be exercised on sound legal principles upon the logical interpretation and application of the 6 | P a g e Bail App 43/2026 same in the given facts and circumstances of the case. The necessary arrests subject to the law of bails as provided under the Code, BNSS and the provisions of different special Legislations are permissible under the Constitution of our Country by way of a reasonable exception to the fundamental right to liberty guaranteed under Article 21 of the Constitution and the mandate of the provisions of Article 22 of the Constitution is meant to be followed upon making any such necessary arrests. 7. In State of Rajasthan Jaipur Vs. Balchand AIR 1977 S.C. 2447, the Hon’ble Apex Court has held, “basic rule may perhaps be tersely put as bail not jail, except where there are circumstances of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating the witnesses and the like, by the petitioner who seeks enlargement on bail from the court. 8. No single rule or a golden litmus test is applicable for consideration of a bail application and instead some material principles/guidelines are needed to be kept in mind by the Courts and the Magistrates for consideration of a bail application especially including: i. Investigation being hampered or The judicial discretion must be exercised with the utmost care and circumspection; ii. That the Court must duly consider the nature and the circumstances of the case; iii. Reasonable apprehension of the witnesses being tampered; iv. Investigation being hampered or v. The judicial process being impeded or subverted. vi. The liberty of an individual must be balanced against the larger interests of the society and the State. 7 | P a g e Bail App 43/2026 vii. The court must weigh in the judicial scales, pros and cons varying from case to case. viii. Grant of bail quo an offence punishable with death or imprisonment for life is an exception and not the rule; ix. The court at this stage is not conducting a preliminary trial but only seeking whether there is a case to go for trial; x. The nature of the charge is the vital factor, the nature of evidence is also pertinent, the punishment to which the party may be liable also bears upon the matter and the likelihood of the applicant interfering with the witnesses or otherwise polluting the course or justice, has also a bearing on the matter. xi. The facts and circumstances of the case play a predominant role. 9. The Hon’ble Apex Court in Gur Bakash Singh Sibbia Vs. State of Punjab AIR 1980 S.C. 1632, referred to the following extract from the American Jurisprudence having bearing on the subject of bail. “where the grant of bail lies within discretion of the court, granting or denial is regulated to a large extent, by the facts and circumstances of each particular case. Since the object of detention order/imprisonment of the accused is to secure his appearance and submission to jurisdiction and the judgment of the court, the preliminary enquiry is whether a recognizance or bond would yield that end. It is thus clear that the question whether to grant bail or not, depends for its answer upon a Variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity for justifying the grant or refusal of bail.” 10. It has been laid down by the Hon’ble Supreme Court in Sanjay Chandra vs. Central Bureau of Investigation AIR 2012 SC 830 at Para 14 of its Judgment as under:- 14) “In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment beings after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the 8 | P a g e Bail App 43/2026 earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.” 11. This Court in its opinion is fully fortified with the authoritative law laid down by the Hon’ble Apex Court cited as Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 in which the bail was granted to the appellant who was involved in economic offences. It is profitable to reproduce the relevant paras 24 and 25 of the judgment for ready reference:- “24. In the instant case, as we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating of the scales of justice.” “25. The provisions of Cr.P.C . confer discretionary jurisdiction on criminal courts to grant bail to accused pending trial or in 9 | P a g e Bail App 43/2026 appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.” 12. In “Prahlad Singh Bhati v. NCT, Delhi”, (2001) 4 SCC 280, the Hon’ble Apex Court has laid down the special factors for taking into consideration while exercising the bail jurisdiction and the relevant para 8 of the said judgment is reproduced as hereunder for ready reference:- “8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 13. The observations of the Hon’ble Apex Court laid down in “State of U.P. v. Amarmani Tripathi”, (2005) 8 SCC 21 at para 18 of the judgment also deserve a needful mention: 10 | P a g e Bail App 43/2026 “18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.” 14. The Hon’ble Apex Court in Sanjay Chandra’s case cited supra has inter alia held at para 40 of the judgment, “the grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon, whenever his presence is required.” 15. The Hon’ble Apex Court in its judgments cited as Siddharam Satlingappa Mhetre Vs. State of Maharastra decided on 02/12/2010, AIR 2011 SC312 and Sushila Aggarwal and others 11 | P a g e Bail App 43/2026 vs. State (NCT of Delhi) and Another decided on January 29, 2020 by a larger bench 2020 SC online 98 , has interpreted law on the subject of anticipatory bail with a very wide outlook and while interpreting the concept of liberty guaranteed under Article 21 of the Constitution of our country in a flexible and broader sense. It has been inter alia observed by the Hon’ble Apex Court in the aforesaid judgments that the exact role of the accused must be properly comprehended before arrest is made. “The inner urge for freedom is a natural phenomenon of every human being. Respect for life and property is not merely a norm or a policy of the state but an essential requirement of any civilized society. Just as the liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order.” 16. The co-accused, namely Mohd. Saleem, stands already released on bail. The petitioner-accused is reported to be under detention continuously since his arrest in the case on 27.10.2024. There is nothing on record suggestive of the fact that the petitioner-accused, if admitted to bail, will misuse the concession of bail by repeating the commission of the crime or by absconding during the trial. 17. For the foregoing reasons, the present successive bail application is allowed and accordingly, the petitioner is admitted to bail, subject to his furnishing surety and personal bonds each in the amount of Rs. 50,000/- (Rupees Fifty Thousand only), to the satisfaction of the learned Registrar Judicial, Jammu Wing of this Court, and the 12 | P a g e Bail App 43/2026 Superintendent, District Jail, Kathua, respectively, for assuring the compliance of the following conditions. i. The petitioner shall remain punctual before the learned trial Court on each and every date of hearing. ii. The petitioner shall not leave the limits of India without the prior permission of the learned trial Court. iii. The petitioner shall not repeat the commission of any offence. iv. In case the requisite surety bond is furnished to the satisfaction of the learned Registrar Judicial, Jammu, Registry shall issue a formal release order directing the Superintendent of District Jail, Kathua, to release the petitioner/accused from his custody in the FIR in question. 18. Nothing in this order shall be construed as any prejudging of or interference with the merits of the main case. 19. The bail petition is, accordingly, disposed of. (MOHD YOUSUF WANI) JUDGE SRINAGAR 17.07.2026 Mubashir Whether the order is speaking: Yes Whether the order is reportable: Yes/No