One Tested Bottle Not Indicative Of All Seized Bottles In Absence Of Batch/Composition Details | J&K High Court Grants Bail In NDPS Case For Lack Of Proof Of Commercial Quantity
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar held that the accused was entitled to bail after finding no basis to treat the recovered pharmaceutical bottles as a commercial quantity. The Court noted that, in the absence of batch numbers or details of the composition in the seizure memo, the contents of one tested bottle could not be treated as indicative of the remaining bottles, and that the prosecution was required to establish uniformity before relying on representative sampling. As only one bottle had been chemically examined and no material showed that the others contained the same substance, the Court found reasonable grounds to believe that the offence did not involve commercial quantity and accordingly directed release on bail subject to conditions.
The proceedings arose from an FIR registered by the police after a naka checking operation on 14.07.2024, during which a vehicle was stopped and multiple bottles of Omrex-T were recovered. The driver was taken into custody, and the bottles along with the vehicle were seized. Samples were drawn in the presence of a Judicial Magistrate and one bottle was sent to the Forensic Science Laboratory, which reported the presence of Codeine Phosphate along with other components. The investigation led to the filing of a challan for offences under Sections 8 and 21 of the NDPS Act. Charges were subsequently framed by the trial court.
The petitioner sought bail, asserting that he had not committed the alleged offence and that the evidence recorded did not show possession of commercial quantity. He emphasized that only one of the eleven bottles had been examined, and no material showed the composition of the remaining bottles. He argued that the absence of batch number details or proof of uniformity meant the remaining bottles could not be presumed to contain the same substance.
The respondent opposed bail, stating that the allegations reflected a grave offence affecting the wider public interest. It was submitted that the recovery of multiple bottles indicated possession of contraband and that the grounds raised did not justify release. The respondent maintained that the analysis of one bottle was sufficient for treating it as a representative sample.
The Court recorded that while deciding a bail application, it must consider several factors, including “prima facie or reasonable ground to believe that the accused has committed the offence, nature and gravity of the charge, severity of punishment, danger of the accused absconding, and likelihood of tampering with evidence.” It further stated that in cases involving commercial quantity under the NDPS Act, “the court has also to keep in view the conditions stipulated in Section 37 of the NDPS Act.”
The petitioner’s contention that evidence on record suggested he was not guilty of possessing commercial quantity was noted. The Court observed that an evaluation at the bail stage cannot involve meticulous examination, stating that “it is only if from a cursory look at the evidence… it is possible to frame an opinion that accused is not guilty… that he can be enlarged on bail.”
The Court examined the evidence led before the trial court and recorded that “only one bottle, out of seized 11 bottles of Omrex-T… has been sent to FSL for chemical analysis.” It noted the argument that the remaining ten bottles were not analysed, and therefore, their contents were not confirmed. The respondent’s reliance on representative sampling was also noted, though the Court observed that the applicability of the cited Supreme Court judgment turned on whether the seized bottles pertained to the same batch.
The judgment records that “in the seizure memo, the batch number and the nature of solution contained in the recovered bottles is not mentioned.” The Court stated that if the bottles were from the same batch, “one could have inferred that the sample… is representative,” but “such is not the case as there is no material on record to suggest that the recovered bottles were bearing the same batch number.”
Thereafter, the Court recorded that from the available evidence, “it appears that out of 11 recovered bottles… only one bottle… was proved to contain Codeine,” and concluded that there existed “reasonable grounds for believing that the petitioner is not guilty of offence of possession [of] commercial quantity.”
It also noted the absence of any material indicating the petitioner’s previous involvement in illicit drug trade, recording that the respondents had “not placed on record any material to show that the petitioner has any previous history” or that he was likely to commit similar offences. Six witnesses had already been examined, and the petitioner’s custody exceeded one year. On these considerations, the Court found a prima facie case for bail.
The Court allowed the petition and directed that the petitioner be admitted to bail. It ordered that the petitioner “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”. The petitioner “shall appear before the learned trial court on each and every date of hearing” and “shall not leave the territorial limits of the Union Territory of J&K without prior permission of the learned trial court.”
The petitioner “shall not intimidate or tamper with prosecution witnesses/evidence” and “shall not indulge in similar activities.” It clarified that the observations were confined to the bail determination and disposed of the application.
Advocates Representing The Parties
For the Petitioner: Mr. Wajid Mohammad Haseeb, Advocate
For the Respondent: Mr. Ilyas Nazir Laway, GA
Case Title: Javaid Ahmad Bhat v. Union Territory of Jammu & Kashmir
Case Number: Bail App No.156/2025
Bench: Justice Sanjay Dhar
