“Recovery from Individual Possession, Not a Commercial Quantity”: J&K High Court Says Section 37 NDPS Not Attracted, Grants Bail After 6 Months in Custody
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sindhu Sharma granted bail to an individual charged under various sections of the Narcotic Drugs and Psychotropic Substances Act, 1985, holding that the recovered quantity of heroin was intermediate and thus the statutory bar under Section 37 of the Act was not attracted. The Court directed release of the applicant on bail upon execution of personal bond and fulfillment of specified conditions, noting that the investigation was complete and charge-sheet had been filed.
The matter concerned an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail in relation to FIR No. 212/2024 dated 17 September 2024, registered at Police Station Rehmbal. The applicant was accused under Sections 8, 21, 22, and subsequently Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The arrest followed a naka checking operation by police officials stationed at Tikri.
On the night of 17 September 2024 at approximately 22:05 hours, a vehicle bearing registration number JK02DH-2486 was stopped for routine checking while en route from Jammu to Srinagar. The car was occupied by three individuals: the driver, identified as Mukhtar Ahmed; the front-seat passenger, Mohd. Hafiz; and the rear-seat passenger, Abdul Hamid—the present applicant.
According to the police, a physical search of Abdul Hamid resulted in the recovery of a transparent polypack containing a heroin-like substance, weighing 104.89 grams, from the front right pocket of his jeans, along with his Aadhaar card. Similarly, a search of co-accused Mukhtar Ahmed led to recovery of a similar substance weighing 106.86 grams from an identical location in his jeans.
Following the recoveries, FIR No. 212/2024 was registered under the NDPS Act. During the course of investigation, Section 29 was added, alleging criminal conspiracy. The applicant applied for bail before the Additional Sessions Judge (Special Judge under NDPS Act), Udhampur, but was denied bail on 28 October 2024 on the ground that the investigation was ongoing and the offences were of serious and heinous nature.
The applicant later approached the High Court for bail, arguing that the quantity recovered from him was of an intermediate level, and therefore the rigours of Section 37 of the NDPS Act were not applicable. It was contended that he had been in custody since 18 September 2024, the investigation was complete, and the charge-sheet had been presented, eliminating any further need for custodial interrogation.
The defence counsel submitted that the contraband was recovered from the applicant in his individual capacity and that the quantity was not commercial. Reliance was placed on multiple judgments including Rashida Iqbal Khan v. State of Maharashtra (Criminal Application No. 2177/2006), Sagar Nana Borkar v. State of Maharashtra (Criminal Bail Application No. 3636/2022), and Sajjad Ahmed v. Union Territory of J&K & Ors. (B.A. No. 276/2020).
In opposition, the prosecution argued that all three individuals were traveling together, that the cumulative quantity of narcotics amounted to a commercial quantity, and that the accused were acting in concert for the illegal trade and supply of banned substances. The prosecution maintained that the nature of the offence warranted continued detention as a matter of public interest.
Justice Sindhu Sharma addressed the arguments advanced and recorded that the quantity of narcotic contraband recovered from Abdul Hamid was not of commercial grade and was found in his individual possession. The Court referred to the Supreme Court’s decision in Amarsingh Ramjibhai Barot v. State of Gujarat, observing:
“It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased... In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances.”
The High Court noted that although the applicant was traveling in the same vehicle as the co-accused, the contraband was recovered individually from his person. On this basis, the Court stated:
“The judgment of Hon’ble Apex Court in Amarsingh Ramjibhai Barot vs. State of Gujarat reported as 2005(7) SCC 550... is applicable at this stage.”
Regarding the applicability of Section 37 of the NDPS Act, the Court recorded:
“The contraband found from the possession of the applicant is less than commercial quantity, as such, this Court is of the considered view that embargo of Section 37 of NDPS Act, would not be applicable in this case.”
The Court further stated:
“It is settled that with regard to intermediate and small quantity, the consideration for grant of bail is under that principles govern under Section 437 of Cr.P.C.”
Noting that the charge-sheet had been filed and that the applicant had been in custody for over six months, the Court concluded:
“The applicant is in custody since 18.09.2024, the investigation is complete, charge-sheet is presented, the applicant is not required for purposes of investigation.”
“Learned counsel has placed on record the judgments in which bail has been granted.”
The Court directed:
“In view of the aforesaid facts and circumstances of the case, the applicants namely Abdul Hamid is admitted to bail subject to the following conditions:”
“The applicant shall furnish personal bond to the tune of Rs. 1,00,000/- with one surety of the like amount to the satisfaction of the Trial Court.”
“The applicant shall cooperate in the remaining part of the trial and shall appear before the Trial Court as and when so directed by the Trial Court without fail.”
“The applicant shall not leave the territorial jurisdiction of UT of J&K without prior permission from the Trial Court.”
“The applicant shall not directly or indirectly make any inducement, threat or promise to any of the listed witnesses or any other person/persons, who may be acquainted with the facts of the case so as to dissuade such persons from disclosing such facts during the trial.”
“The applicant shall not indulge in any offence similar to that with which he is charged with in the instant case.”
“With these observations, the instant bail application is disposed of.”
Advocates Representing the Parties
For the Petitioners: Mr. N. D. Qazi, Advocate
For the Respondents: Mr. Sumeet Bhatia, Government Advocate
Case Title: Abdul Hamid v. Union Territory of J&K & Anr.
Case Number: Bail App No. 261/2024
Bench: Justice Sindhu Sharma
[Read/Download order]
