"J&K High Court Grants Temporary Bail to NDPS Accused to Care for Ailing Daughter Undergoing Surgery"
Sanchayita Lahkar
The High Court of Jammu and Kashmir and Ladakh Single Bench of Justice Rahul Bharti directed the grant of short-term bail to the petitioner, reversing the lower court’s denial of bail extension. The Court held that, given the petitioner is the only guardian available to attend to the medical needs of his minor daughter, bail must be extended to allow him to be present for her scheduled surgery. The Bench directed the Principal Sessions Judge, Kulgam to grant a 20-day bail from the date of the petitioner’s release from District Jail, Kathua, upon production of a certified copy of the order.
An FIR bearing number 255 of 2021 was registered at Police Station Qazigund against the petitioner and another accused, Kuldeep Kumar, for alleged offences under Sections 8, 15, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Following the registration of the FIR, an investigation ensued, culminating in the filing of a Final Police Report (Challan), which is presently under trial before the Principal Sessions Judge, Kulgam.
The petitioner subsequently filed an application for short-term bail, citing the need for urgent medical treatment of his minor daughter. The application explained that his daughter, a school-going child, was to undergo an ENT examination that could lead to surgical intervention. Upon considering the application, the Principal Sessions Judge, Kulgam granted bail on 29.03.2025 on File No. 39 of 2025. The terms of this bail were specific: the petitioner was released until 15.04.2025 and was directed to surrender to the Superintendent, District Jail Kathua, before 4:00 PM on the expiration date.
During this short release, the petitioner managed to get his daughter examined as an OPD patient at the Sher-e-Kashmir Institute of Medical Sciences (SKIMS), Soura, Srinagar. This is supported by the medical record under Registration ID No. 3704920 dated 10.04.2025. The child was examined by the Pediatric Surgery-I (OPD)-(P-9) department and diagnosed with Submucosal Nasal Twang. Based on this medical examination, a surgery date was fixed for 23.04.2025.
Recognizing that his bail was due to expire before the surgery, the petitioner filed another bail application on 12.04.2025 before the same court on File No. 89/M. This application sought an extension of the bail period to facilitate the scheduled surgery. However, the Principal Sessions Judge rejected the application on 15.04.2025, relying on grounds discussed in paragraph 11 of that order. As a result, the petitioner was taken back into judicial custody and remanded to District Jail, Kathua.
The petitioner then approached the High Court through the present bail application. In support of his claim, he submitted updated medical prescriptions indicating that the original surgery scheduled for 23.04.2025 had been deferred due to the child developing a fever, and was now re-scheduled for 29.04.2025. These developments were documented at page No. 27 of the present petition.
During the prior medical consultations and the procurement of medical documentation, the petitioner was in judicial custody. It was his wife who arranged for their daughter's treatment during that period. The petitioner argued that the refusal to extend his bail on grounds that questioned the genuineness of the documents was prejudicial, particularly since the short-term bail had earlier been granted on similar documentation.
The High Court took cognizance of the petition, medical submissions, and procedural history leading to the current situation, and considered whether the denial of further bail by the lower court was justified under the given circumstances.
Justice Rahul Bharti recorded that “this bail petition can be disposed of at this stage as the reasoning given by the learned Principal Sessions Judge, Kulgam may have some factual basis to be cited so” but stated that the nature of the petitioner’s responsibilities warranted judicial consideration. The Court stated in clear terms that: “given the fact that for her minor daughter the petitioner is the only guardian who is supposed to attend her ailment, as such, the Principal Sessions Judge, Kulgam ought to have continued with the judicial trust in the petitioner.”
It was further recorded that: “the previous prescriptions which were not procured by the petitioner himself but were during the time when the petitioner himself was inside jail and his wife was perhaps attending the petitioner’s sick daughter” should not have been a ground to deny the bail extension, adding that:
“May be the petitioner’s counsel who had moved the petition for seeking short term bail from the Court of Principal Sessions Judge, Kulgam was not able to stitch facts properly for which the petitioner should not have been made to suffer prejudice.”
The High Court also noted the importance of familial presence in times of medical emergencies, observing:
“This Court cannot lose sight of the fact that presence of an elder male member of a family for attending upon an ailing daughter requiring surgery/hospitalization is a call of the day keeping in view the nature of the Civil and Social of which all of us are part of.”
The Court made no adverse findings against the petitioner’s conduct during the initial bail period and did not question the authenticity of the medical necessity. It recorded that the deferment of the initial surgery scheduled on 23.04.2025 was due to the petitioner’s daughter developing fever, thereby justifying the current request for bail to coincide with the revised surgery date of 29.04.2025.
The High Court issued a directive to the Principal Sessions Judge, Kulgam as follows: “Therefore, this Court disposes of this petition with a direction unto the learned Principal Sessions Judge, Kulgam to grant short duration bail in favour of the petitioner to last for a period of 20 days from the date of his release from the District Jail, Kuthua by passing an order to said effect upon production of certified copy of this order.”
In addition, the Court instructed: “A copy of this order be given to Mr. Usman Gani, the learned counsel for the petitioner under the seal and signature of the Bench Secretary.”
Advocates Representing the Parties
For the Petitioners: Mr. Usman Gani, Advocate
Case Title: Aasif Amin Thoker v. Union Territory of J&K
Case Number: Bail App No. 56/2025, CrlM No. 466/2025
Bench: Justice Rahul Bharti
[Read/Download order]
