Jammu & Kashmir High Court
2026:Jklhc-Jmu:943-Db vs National Investigating Agency on 2 April, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2026:JKLHC-JMU:943-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl A(D) No. 26/2025
Reserved on: 24.03.2026
Pronounced on : 02.04.2026
Uploaded on: 02.04.2026
Whether the operative part or
full judgment is pronounced: "FULL"
Amin Allaie, Age 46 years ...Applicant(s)/Petitioner(s)
S/o Hazi Ghulam Moh-u-Din
R/o near Petrol pump Shan-e-Kashmir National
Highway Sangum Tehsil Bijbehara Anantnag
Kashmir at present District Jail Jhajjar through
his wife Rubina age 40 years W/o Amin Allaie R/o
near Petrol pump Shan-e-Kashmir National
Highway Sangum Tehsil Bijbehara Anantnag
Kashmir
Through: - Mr. I.H. Bhat, Advocate
v/s
National Investigating Agency, Jammu ...Respondent(s)
Through:- Mr. Vishal Sharma, DSGI with
Mr. Eeshaan Dadhichi, CGSC.
Mr. Chandan Kumar Singh, Public Prosecutor,
NIA
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjay Parihar-J
1. The appellant, who figures as A-13 in Challan File No. 22 arising out of
Crime Case No. RC-03/2020/NIA/Jammu dated 23.06.2020, registered
under Section 120-B IPC, Sections 8/21 NDPS Act and Sections 17, 18
and 20 of the UAPA, is facing trial before the Court of Special Judge,
NIA, Jammu (hereinafter referred to as “the Trial Court”). Aggrieved of
2026:JKLHC-JMU:943-DB
the order dated 19.04.2025 whereby his application for grant of bail has
been declined, the appellant has invoked the appellate jurisdiction of this
Court under Section 21 of the NIA Act, primarily on the ground that
neither any recovery has been effected from him nor is there any material
to demonstrate that he had dealt with narcotic substances or generated
proceeds for alleged terrorist funding in the Union Territory of Jammu
and Kashmir. It is contended that the prosecution case is founded
substantially upon disclosure and confessional statements of co-accused,
coupled with alleged telephonic contacts, without any independent
corroboration, and that despite the appellant being in custody since
01.03.2021, the evidence recorded thus far does not disclose any
incriminating material against him.
2. The learned counsel for the appellant has urged that the learned Trial
Court has failed to undertake the statutory exercise mandated under
Section 43-D (5) of the UAPA, namely, to record satisfaction as to
whether there exist reasonable grounds for believing that the accusations
against the appellant are prima facie true. It is further submitted that the
entire case rests upon the statements of co-accused and an approver,
which in law constitute weak evidence and cannot be the sole basis to
deny bail. On the other hand, the prosecution asserts that the appellant
was actively involved in smuggling and transportation of narcotic
substances and that the proceeds thereof were utilised for providing
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logistical support to militant activities, relying upon documentary material
including voice clips and chats to substantiate the alleged conspiracy.
3. The legal position governing the grant of bail under the UAPA is no
longer res integra. In National Investigation Agency v. Zahoor Ahmad
Shah Watali, (2019) 5 SCC 9, the Hon’ble Supreme Court held that at the
stage of bail, the Court must examine whether there are reasonable
grounds for believing that the accusations are prima facie true, based on
the material placed on record. However, the rigour of Section 43-D (5) is
not absolute. In Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it has
been authoritatively held that constitutional courts retain the power to
grant bail in cases of prolonged incarceration where the trial is unlikely to
conclude within a reasonable time. In Vernon v. State of Maharashtra,
(2023) 10 SCC 620, the Supreme Court emphasised that the Court is not
expected to act as a mere post office of the prosecution but must assess
the probative value of the material relied upon. Similarly, in Asif Iqbal
Tanha v. State (NCT of Delhi), (2023) 9 SCC 291, it was held that mere
association or contact, in the absence of specific acts constituting terrorist
activity, cannot justify denial of bail. Further, in Gurwinder Singh v.
State of Punjab, 2024 INSC 92, it has been reiterated that while delay
alone may not be decisive, the weakness of the prosecution case coupled
with prolonged incarceration can be a valid ground for grant of bail.
4. It is equally well settled that the offence of criminal conspiracy under
Section 120-B IPC requires a clear meeting of minds and a demonstrable
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agreement to commit an illegal act. In State (NCT of Delhi) v. Navjot
Sandhu, (2005) 11 SCC 600, it has been held that mere knowledge or
association is not sufficient to establish conspiracy in the absence of
cogent evidence showing participation. Likewise, in Kehar Singh v. State
(Delhi Administration), (1988) 3 SCC 609, the Supreme Court observed
that conspiracy must be proved either by direct evidence or by a chain of
circumstances which unerringly points towards the existence of such
agreement. Mere suspicion, however strong, cannot substitute proof.
5. We have examined the trial court record and heard, the counsel for the
parties. As per the charge-sheet, the allegation against the appellant is that
he was an active smuggler/transporter of charas, who, between the years
2003 and 2018, committed various acts and supplied the contraband to
different dealers operating in Mumbai, Delhi, Nasik and Ajmer. It is
further alleged that in the year 2012, he was arrested in an NDPS case
registered by Police Station Qazigund and remained in detention, and that
during such detention he came into contact with A-8, Showkat Ahmad
Parray, who was also lodged in jail. Thereafter, in the year 2016, the
appellant was released from custody. The prosecution case further
proceeds on the footing that in the year 2018, when a narcotic drug
consignment allegedly belonging to the appellant was seized by the NCB
at Ban Toll Plaza, Jammu, he contacted A-8 for assistance, along with co-
accused Altaf Ahmed Shah (A-10). It is also alleged that he remained in
regular contact with co-accused Romesh Kumar (A-11) and was indulging
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in the sale of narcotic substances. From a reading of the charge-sheet, the
case against the appellant is stated to rest primarily on the statement of the
approver, namely A-8 Showkat Ahmad Parray, who is said to have
disclosed that the appellant too was an active smuggler/transporter of
narcotic substances. During the course of arguments, learned counsel for
the appellant fairly conceded that there was indeed an FIR against the
appellant pertaining to possession of narcotic substance, in which he had
been granted bail, but submitted that apart from the said FIR, there is
nothing incriminating against him. It is not in dispute that in the present
case no recovery has been effected from the appellant. He has been
arrayed as an accused essentially on the strength of the approver’s
statement. Learned counsel for the appellant, therefore, vehemently
argued that the statement of an approver is, by itself, a weak piece of
evidence and, when coupled with the absence of any recovery and the
absence of any direct participation of the appellant in the acts leading to
the occurrence in question, it cannot be readily inferred that the appellant
had any such connection with the co-accused as would justify his
implication in the present case.
6. Though it has been argued that the appellant was arrested in FIR No.
335/2012 of Police Station Bijbehara under Section 8/20 of the NDPS Act
in relation to an incident having no connection with the present case, it is
also the stand of the appellant that he has already been enlarged on bail in
the said case. The prosecution, however, seeks to rely upon voice clips
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and chats to demonstrate that the appellant was in constant contact with
A-1, A-8 and A-10. Insofar as A-1 Abdul Momin Peer is concerned, he is
stated to be the person who had asked the appellant to provide him a
truck, which, according to the prosecution, was thereafter used for
smuggling narcotic substance from Tangdhar. The said truck was
subsequently purchased by A-1 and A-4 Afaq Ahmed Wani after payment
of an advance amount of ₹5 lakhs. Later, the truck came to be seized, as
the finance company which had financed it was not satisfied. It is further
alleged that A-1 used to receive narcotic substance from across the border
and thereafter transport the same to the mainland. However, except for the
allegation that the appellant facilitated the purchase of the truck by A-1,
there is no material to show, at least prima facie, that the appellant acted
in any manner so as to invite the commission of any offence under the
NDPS Act. As regards A-1, he was found in possession of 5 kilograms of
heroin and, on his disclosure, large quantities of narcotic substance were
recovered from the possession of A-2, A-3, A-4, A-5 and A-6, besides
recovery of cash amounting to ₹1.5 crore. Insofar as those recoveries are
concerned, the participation attributed to the appellant, on the face of the
record, appears to be minimal. So far as A-8 Showkat Ahmad Parray is
concerned, he is alleged to be one of the masterminds of the conspiracy
and his involvement in narcotic drug smuggling is specifically recorded in
paragraph 17.65 of the charge-sheet. Likewise, A-10 Altaf Ahmed Shah is
alleged to have become addicted to drugs while working in the showroom
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of A-8 and to have procured a SIM card which was being used by A-8 and
others to facilitate smuggling of narcotic substance. According to the
prosecution, the appellant was also in contact with A-10 as well as A-11
Romesh Kumar.
7. What emerges from the charge-sheet and the material collected during
investigation is that the appellant was, on one occasion in the year 2012,
found in possession of contraband of the kind charas, for which FIR No.
335/2012 of Police Station Bijbehara under Section 8/20 of the NDPS Act
came to be registered against him, and in that case he has already been
enlarged on bail. The contact attributed to the appellant with the co-
accused appears, prima facie, to be peripheral in nature and may, at the
highest, indicate that he was aware of the nature of the activities allegedly
being undertaken by some of the co-accused, particularly A-11 Romesh
Kumar, who was serving in the NCB and from whose possession cash
amounting to ₹91 lakhs was recovered, and who has already been
enlarged on bail by the Hon’ble Apex Court. Except for the statement of
the approver, there appears to be no legally tenable material collected
during investigation so as to substantiate any direct participation of the
appellant in the recovery of narcotic substance effected on 11.06.2020 and
thereafter. Merely because the appellant was found in possession of
narcotic substance, namely charas, in the year 2012, it cannot, by itself,
lead to a presumption that he continued to indulge in such activities
thereafter or that he had knowledge of the recoveries effected from A-1,
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A-2, A-3, A-4, A-5 and A-6 on 11.06.2020 and subsequent thereto. The
principal thrust of the prosecution is that the voice clips and chats
recovered during investigation would demonstrate that the appellant had
conspired with the co-accused for sale and purchase of narcotic substance
and for collecting funds, which were later to be utilised for logistic
purposes. The appellant is, however, nowhere shown to be associated with
any militant organisation. In fact, even from the transcripts recovered
from the mobile phone, the conversation attributed to him with A-1
appears only to pertain to an incident relating to the sale of a truck, which
the appellant may have facilitated. Insofar as the conversation with A-8,
the approver, is concerned, the prosecution case is that A-8 has stated that
the appellant had been indulging in smuggling of narcotics.
8. The prosecution case in the present matter is primarily founded upon the
statement of an approver and confessional statements of co-accused. The
evidentiary value of such material stands conclusively settled. In
Kashmira Singh v. State of M.P., (1952) 1 SCC 275, it was held that the
confession of a co-accused is a weak type of evidence and cannot be made
the foundation of conviction; it may at best be used to lend assurance to
other independent evidence. This principle has been reiterated in
Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184, and finds its
origin in Bhuboni Sahu v. King, AIR 1949 PC 257, wherein it was held
that such confession is not substantive evidence within the meaning of
Section 3 of the Evidence Act. The recent pronouncement of the Hon’ble
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Supreme Court (2025 LiveLaw SC 598) has further clarified that
confessional statements of co-accused can be taken into consideration
only subject to strict compliance with Sections 24 to 30 of the Evidence
Act and cannot independently sustain the prosecution case.
9. Applying the aforesaid settled principles to the facts of the present case, it
emerges that no recovery has been effected from the appellant, nor is
there any material to demonstrate his conscious possession, direct
participation, or involvement in any transaction leading to the recovery of
narcotic substances from other co-accused. The entire case against him
rests upon the statement of an approver and alleged telephonic contacts,
without any corroborative evidence such as financial transactions,
recovery, or overt acts attributable to him. Even the role attributed to the
appellant, as borne out from the charge-sheet, appears to be peripheral and
inferential in nature.
10. In such circumstances, even if the prosecution material is taken at its face
value, the same does not satisfy the threshold laid down in Watali (supra),
as there are no reasonable grounds to believe that the accusations against
the appellant are prima facie true. The absence of recovery, lack of direct
nexus, and the reliance upon weak evidentiary material such as
confessional statements further dilute the prosecution case. The continued
incarceration of the appellant, particularly in the backdrop of prolonged
custody, would be inconsistent with the mandate of Article 21 of the
Constitution, as recognised in K.A. Najeeb (supra).
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11. Accordingly, this Court is of the considered opinion that the appellant has
succeeded in carving out a case for grant of bail. The impugned order
dated 19.04.2025 is set aside and the appellant is directed to be released
on bail subject to the following conditions:-
i. The appellant shall furnish a personal bond in the sum of
₹1,00,000/- with two sureties of the like amount to the satisfaction
of the Trial Court;
ii. He shall appear before Trial Court on each and every date of
hearing and shall not leave the territorial jurisdiction of the Union
Territory of Jammu & Kashmir without prior permission of Trial
Court;
iii. He shall not indulge in any offence similar to the one for which he
stands charged.
12. Crl A(D) No. 26/2025 stands disposed of. Copy of the order shall be
notified to the Trial Court for compliance.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
02.04.2026
Akhil Dev
Whether the order is speaking? : Yes
Whether the order is reportable? : Yes
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