Sanchayita Lahkar

The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Wasim Sadiq Nargal, dismissed the bail plea of a 27-year-old man accused of possessing a commercial quantity of contraband under the NDPS Act, while directing the trial court to conclude the proceedings at the earliest. Referring to the broader public impact of narcotic offences, the Court noted that drug traffickers cause serious harm to young people and pose a danger to the community, and that allowing such accused to re-enter society, even for a limited period, carries a social cost that cannot be quantified. In this context, the Court held that the twin conditions prescribed for bail in commercial quantity cases were not satisfied and declined to release the accused.

The petitioner filed an application seeking enlargement on bail in an FIR registered under the NDPS Act after he was allegedly found in possession of commercial quantity of contraband during a naka checking operation conducted by the police. Upon completion of investigation, a challan/charge sheet was presented before the Trial Court where the trial is currently in progress. The prosecution stated that the bottles recovered from the vehicle of the petitioner were seized, samples were drawn and sent to FSL, and the FSL report confirmed the contents to be Chlorine Phosphate. During trial, ten out of thirteen prosecution witnesses, including the complainant, Executive Magistrate, and Forensic Science Laboratory expert, have been examined.

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The petitioner challenged the legality and manner of recovery and alleged non-compliance of safeguards under Sections 42, 50, 52, 52A and 57 of the NDPS Act, NDPS Rules, SOP issued by the Home Department, and GSR 899(E) dated 23.12.2022. He also contended that the prosecution witnesses disclosed contradictions in their testimonies, including the Executive Magistrate’s deposition suggesting prior information and the recovery memo carrying the FIR number before alleged registration. He further asserted that the 12-day delay in the samples reaching the FSL created doubt about the chain of custody and submitted that he had been in custody for more than four years and that continued detention violated Article 21.

The respondents opposed the bail plea on the ground that the recovery of commercial quantity was not disputed and that Section 37 of the NDPS Act applied fully. It was submitted that prolonged custody alone cannot justify bail under the NDPS Act, the depositions indicated petitioner’s involvement, and procedural lapses or contradictions could not be used as grounds at the bail stage.

The Court recorded that “the alleged recovery pertains to commercial quantity” and therefore the statutory bar under Section 37 of the NDPS Act applied. It stated that bail could not be granted unless the Court was “satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.” The Court noted that the petitioner did not dispute the recovery but only challenged the procedure adopted.

The Court cited the interpretation of “reasonable grounds” and recorded that the expression meant “credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence.” It further noted that the burden placed on the accused was “heavy and much stricter than the normal rules of bail.”

The Court observed that although the petitioner relied upon prolonged incarceration and alleged procedural lapses, “continued custody of the petitioner, in the absence of satisfaction of the twin conditions, cannot be characterized violative of Article 21 of Constitution of India.” It stated that prolonged incarceration alone cannot justify bail because “the statutory restrictions imposed under Section 37 are mandatory in nature.”

The Court recorded that issues related to contradictions in statements and alleged procedural lapses would require evaluation of evidence and “are the matters that can be properly decided by the Trial Court only.” At the bail stage, the Court “is not required to decide the question of guilt or innocence.”

The Court further observed that releasing an accused in possession of commercial quantity posed wide social implications, noting that offences “impact society at large” and “drug traffickers inflict a deadly blow on the youth and are a hazard to society.” It stated that release without satisfaction of statutory requirements creates “a real and tangible risk of the accused returning to the same network and re-offending.”

Accordingly, the Court recorded that no material was placed on record “from which reasonable satisfaction can be drawn in favour of the petitioner” and thus the “mandatory requirements of Section 37 of the NDPS Act” were not satisfied.

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The Court directed that “the bail application stands dismissed. Trial court is directed to proceed with the matter expeditiously and make every effort to conclude the trial at the earliest, without unnecessary delay.”

Advocates Representing The Parties

For the Petitioner: Mr. Gowhar Majid Dalal, Advocate with Mr. Ibrahim Mehraj, Advocate
For the Respondents: Mr. Ilyas Nazir Laway, Government Advocate

Case Title: Shahnawaz Ahmad Dar vs U.T. of J&K

Case Number: Bail App No. 165/2023
Bench: Justice Wasim Sadiq Nargal