Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rajesh Sekhri has granted bail to an accused booked under the NDPS Act, directing that he be released on furnishing a surety bond and personal recognizance, subject to conditions including cooperation with the investigating agency and not leaving the trial court’s jurisdiction without permission. The allegation was that money credited into the accused’s bank account by co-accused showed financing of illicit trafficking, though the narcotics recovery was from a co-accused and not from the applicant’s possession. The Court held that Section 27A concerns financing illicit traffic or harbouring offenders, distinct from sale or transportation allegations, and that mere receipt of funds, without material indicating actual financing or harbouring, did not prima facie attract Section 27A.

The applicant sought anticipatory bail in connection with an FIR registered at Police Station Majalta, Udhampur, for offences under Sections 8/21/22 of the NDPS Act. The prosecution case originated from a naka checking during which a co-accused was intercepted and a polythene packet containing heroin-like substance, along with a weighing machine, mobile phone, and cash, was allegedly recovered from his possession. An FIR was registered against the co-accused and another person.

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During investigation, statements were recorded alleging that the applicant was the main supplier of contraband and that certain amounts had been deposited in his bank accounts by co-accused persons. The Sessions Court declined bail, referring to bank transactions and a statement made by a co-accused while in custody.

Before the High Court, the applicant contended that no recovery was affected from his possession and that the bank transactions reflected loans and family property proceeds. The prosecution opposed the plea on the ground of gravity of the offence and invoked Section 27A of the NDPS Act, alleging financing of illicit traffic.

The Court recorded that “Provisions of Cr.P.C., now BNS, confer discretionary jurisdiction on Courts to consider a bail plea.” It observed that “grant or refusal of bail must reflect a perfect balance between conflicting interests of shielding the society from the hazards of criminals and absolute adherence to the fundamental postulate of criminal jurisprudence regarding the presumption of innocence of accused till proven guilty.”

While examining Section 27A, the Court stated, “It is evident from a plain reading of Section 27-A NDPS Act that it is required to be read in conjunction with Section 2(viiib)(i) to (v) of the Act.” It further observed, “there is clear distinction between engagement in the sale, purchase, transportation, ware-house, concealment, etc. of Narcotic Drugs and Psychotropic Substances from ‘financing’ of illicit traffic and ‘harboring’ of the offenders.”

Referring to the meaning of finance, the Court recorded, “‘Finance’, in essence means to facilitate economic activity by enabling somebody to secure the funds, he needs to operate.” It also stated, “a sale consideration or a payment made for a particular transaction would not amount to ‘financing’.” On harbouring, the Court observed, “‘harbouring’ requires an element of protecting or shielding a drug trafficker from legal action.”

Applying these principles, the Court stated, “there is no prima facie evidence to support Section 27-A charge, as the material available do not meet the direct threshold.” It recorded, “there is nothing on the record or in the CD file to reflect that applicant at any point of time provided money or financed co-accused or anybody else.” The Court further stated, “I do not find the factual foundation to verify the allegation that petitioner, at any point of time, directly or indirectly indulged in financing the activities.”

Regarding recovery, the Court noted, “the contraband, in the present case came to be recovered from the possession of co-accused Latif Ali and not from the possession of the applicant.” On the evidentiary value of statements, it reproduced the Supreme Court’s holding that “a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act.”

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The Court directed: “present application is allowed and applicant is directed to be released on bail subject to his furnishing a surety bond in the amount of Rs.1.00 lac to the satisfaction of learned trial Court and a bond of personal recognizance of like amount, subject, however, to the following conditions that;”

1. “he is not involved in any other offence of like nature;”
2. “he shall not jump over bail and make an attempt to tamper the prosecution evidence or coerce the witnesses;”
3. “he shall not leave territorial jurisdiction of the trial Court without prior permission; and”
4. “he shall appear before the IO and cooperate with the investigating agency, as and when directed.”

Advocates Representing the Parties:

For the Petitioners: Mr. Abhinav Sharma, Senior Advocate with Mr. Abhimanyu Sharma, Advocate

For the Respondents: Mr. Sumeet Bhatia, Government Advocate

Case Title: Mazeed Ali v. UT of J&K
Case Number: Bail App No.368/2025
Bench: Justice Rajesh Sekhri