S/O Shamash Din vs Thorugh on 17 July, 2026

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    Jammu & Kashmir High Court

    S/O Shamash Din vs Thorugh on 17 July, 2026

                                                           Serial No.22
                                                         Suppl. Cause List
     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                          (Through Virtual Mode)
    
    
                               Bail App 43/2026
                               CrlM(443/2026)
    IMRAN ALI AGED 27 YEARS
    S/O SHAMASH DIN                                            ...Petitioner(s)
    R/O DADWARA TEHSIL
    BILLAWAR DISTRICT
    KATHUA
    PRESENTLY LODGED IN
    DISTRICT JAIL KATHUA
    
    Through:   Mr. Aseesh Singh Kotwal, Advocate with
               Mr. Pankaj Basotra, Advocate
                                    Vs.
    1. UNION TERRITORY OF
       JAMMU AND KASHMIR
       THORUGH                                               ...Respondent(s).
       SUPERINTENDENT
       DISTRICT JAIL KATHUA
    2. STATION HOUSE OFFICER
       POICE STATION BILLAWAR
       DISTRICT KATHUA
    
    Through:     Mr. Banu Jasrotia, GA vice
                 Mr. Suneel Malhotra, GA
    CORAM:
         HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
                            ORDER
    

    17.07.2026

    1. Through the medium of this successive bail petition, the petitioner,

    SPONSORED

    Imran Ali S/o Shamash Din, R/o Dadwara, Tehsil Billawar, District

    Kathua, seeks his enlargement on bail in case FIR No. 144/2024

    dated 27.10.2024 under Sections 8/21,22,25,27-A,29 of the NDPS

    Act, registered at Police Station Billawar, District Kathua, on the

    1 | Page Bail App 43/2026
    main grounds that he is innocent and is not directly or indirectly

    connected with the commission of the alleged crime. That he had

    already approached the learned trial Court, i.e., the Court of learned

    Additional Sessions Judge, Kathua, seeking the concession of bail in

    his favour, but his prayer was declined vide order dated 19.02.2026

    passed by the learned trial Court on his bail petition dated

    11.12.2025. That he was arrested in the case on false and frivolous

    grounds way back on 27.10.2024 and since then he has been

    continuously under detention in the case FIR. That the trial of the

    case is going on and is at the stage of recording of prosecution

    evidence. That since he has been continuously facing incarceration in

    the case FIR for the last more than one and a half years, as such, his

    liberty stands curtailed. That the trial of the case has been going on

    since 26.12.2024 and the same is likely to take much more time for

    its conclusion as most of the prosecution witnesses are yet to be

    examined. That a squantity of 4.12 grams of heroin is alleged to have

    been recovered from his possession on the date of the alleged

    occurrence, i.e., 27.10.2024, which falls under the category of small

    quantity. That the co-accused, Mohd. Saleem, with whom he is

    alleged to have shared the conspiracy, has already been enlarged on

    bail in the matter, from whom a quantity of 6.42 grams of heroin was

    allegedly recovered. That even if he is alleged to have committed the

    offence under conspiracy, then the total quantity recovered from him

    and the co-accused amounts to about 11 grams, which is much below

    the commercial quantity, i.e., 250 grams. That the allegations of

    2 | Page Bail App 43/2026
    financing illicit traffic in narcotic drugs and psychotropic substances

    do not appear to be borne out from the facts and circumstances of the

    case. That the Investigating Officer (IO) of the case, during the

    course of investigation, despite prior registration of the FIR, failed to

    comply with the mandatory provisions of the NDPS Act. That the

    search and seizure, as alleged, was not conducted in accordance with

    the procedure prescribed under the NDPS Act. That his prolonged

    detention amounts to his pre-trial conviction, which is violative of

    his fundamental right to life and personal liberty. That he shall abide

    by any conditions that may be imposed by this Court while enlarging

    him on bail.

    2. The respondent-UT has filed its objections in the matter and the

    instant bail petition has been resisted on the grounds that the

    petitioner is involved in the commission of heinous anti-social

    offences punishable under the NDPS Act. The petitioner is alleged to

    have been indulging in the illicit trade in narcotic drugs and

    psychotropic substances under a conspiracy with the financing of

    such trade. A narcotic substance, namely heroin, weighing 4.12

    grams, is alleged to have been recovered from his possession, with

    the recovery of a further 6.42 grams of the same substance from the

    co-accused, Mohd. Saleem. The trial of the case is reported to be

    going on, and charges are reported to have already been framed

    against the petitioner. It is contended that the petitioner, being

    involved in the commission of an offence punishable under Section

    27-A of the NDPS Act, cannot be enlarged on bail in view of the

    3 | Page Bail App 43/2026
    embargo placed by Section 37 of the NDPS Act. The respondent has

    further apprehended that the release of the petitioner may send a

    wrong signal to society and shall encourage like-minded persons,

    with the petitioner-accused being tempted to repeat the commission

    of the crime.

    3. I have heard learned counsel for the parties, who reiterated their

    respective stands already taken in the bail petition and the memo of

    objections. I have perused the order dated 19.02.2026 passed by the

    learned trial Court while declining bail to the petitioner. The trial

    Court record has also been perused.

    4. Keeping in view the perusal of the instant successive bail

    application, the memo of objections, the trial Court record, and the

    consideration of the rival arguments advanced at the Bar on both

    sides, this Court, in the facts and circumstances of the case, is of the

    opinion that it would be in the ends of justice in case the petitioner-

    accused, namely Imran Ali S/o Shamash Din, R/o Dadwara, Tehsil

    Billawar, District Kathua, is admitted to bail in case FIR No.

    144/2024 dated 27.10.2024 under Sections 8/21,22,25,27-A,s29 of

    the NDPS Act, registered at Police Station Billawar, District Kathua,

    subject to some reasonable terms and conditions.

    5. Admittedly, the provisions of Section 37 of the NDPS Act impose a

    bar on the grant of bail to an accused involved in the commission of

    offences punishable under Sections 19, 24 or 27-A of the Act, as also

    in offences involving commercial quantity, unless the Public

    4 | Page Bail App 43/2026
    Prosecutor has been given an opportunity to oppose the application

    for such release and, where the Public Prosecutor opposes the

    application, the Court is satisfied that there are reasonable grounds

    for believing that he is not guilty of such offence and that he is not

    likely to commit any offence while on bail. Undoubtedly, the

    aforesaid limitations under Section 37 of the Act are in addition to

    the limitations already laid down under the Code of Criminal

    Procedure/BNSS or any other law for the time being in force

    governing the grant of bail. The quantity of heroin alleged to have

    been recovered from the petitioner-accused as well as from the co-

    accused is intermediate and much below the commercial quantity

    fixed at 250 grams for the contraband in question. So far as the

    involvement of the petitioner under Section 27-A of the NDPS Act is

    concerned, this Court, in the facts and circumstances of the case,

    having regard to the allegations against the petitioner-accused, is not

    of the opinion that there appear reasonable grounds for believing that

    he is involved in the said offence.

    6. Apart from the statutory bar, if any, two paramount considerations

    viz. likelihood of accused fleeing from justice and tampering with

    the prosecution evidence relate to the ensuring of a fair trial of the

    case in a court of law. It is essential that due and proper appreciation

    and weightage should be bestowed on these factors apart from

    others. The grant of bail or the denial of the same falls within the

    purview of the judicial discretion meant to be exercised on sound

    legal principles upon the logical interpretation and application of the

    5 | Page Bail App 43/2026
    same in the given facts and circumstances of the case. The necessary

    arrests subject to the law of bails as provided under the Code, BNSS

    and the provisions of different special Legislations are permissible

    under the Constitution of our Country by way of a reasonable

    exception to the fundamental right to liberty guaranteed under

    Article 21 of the Constitution and the mandate of the provisions of

    Article 22 of the Constitution is meant to be followed upon making

    any such necessary arrests.

    7. In State of Rajasthan Jaipur Vs. Balchand AIR 1977 S.C. 2447,

    the Hon’ble Apex Court has held, “basic rule may perhaps be tersely

    put as bail not jail, except where there are circumstances of fleeing

    from justice or thwarting the course of justice or creating other

    troubles in the shape of repeating offences or intimidating the

    witnesses and the like, by the petitioner who seeks enlargement on

    bail from the court.

    8. No single rule or a golden litmus test is applicable for consideration

    of a bail application and instead some material principles/guidelines

    are needed to be kept in mind by the Courts and the Magistrates for

    consideration of a bail application especially including:

    i. Investigation being hampered or The judicial discretion must be
    exercised with the utmost care and circumspection;
    ii. That the Court must duly consider the nature and the
    circumstances of the case;

    iii. Reasonable apprehension of the witnesses being tampered;
    iv. Investigation being hampered or
    v. The judicial process being impeded or subverted.
    vi. The liberty of an individual must be balanced against the larger
    interests of the society and the State.

    6 | Page Bail App 43/2026

    vii. The court must weigh in the judicial scales, pros and cons
    varying from case to case.

    viii. Grant of bail quo an offence punishable with death or
    imprisonment for life is an exception and not the rule;
    ix. The court at this stage is not conducting a preliminary trial but
    only seeking whether there is a case to go for trial;
    x. The nature of the charge is the vital factor, the nature of
    evidence is also pertinent, the punishment to which the party
    may be liable also bears upon the matter and the likelihood of
    the applicant interfering with the witnesses or otherwise
    polluting the course or justice, has also a bearing on the matter.
    xi. The facts and circumstances of the case play a predominant role.

    9. The Hon’ble Apex Court in Gur Bakash Singh Sibbia Vs. State of

    Punjab AIR 1980 S.C. 1632, referred to the following extract from

    the American Jurisprudence having bearing on the subject of bail.

    “where the grant of bail lies within discretion of the court,
    granting or denial is regulated to a large extent, by the facts
    and circumstances of each particular case. Since the object of
    detention order/imprisonment of the accused is to secure his
    appearance and submission to jurisdiction and the judgment of
    the court, the preliminary enquiry is whether a recognizance
    or bond would yield that end. It is thus clear that the question
    whether to grant bail or not, depends for its answer upon a
    Variety of circumstances, the cumulative effect of which must
    enter into the judicial verdict. Any one single circumstance
    cannot be treated as of universal validity for justifying the
    grant or refusal of bail.”

    10.It has been laid down by the Hon’ble Supreme Court in Sanjay

    Chandra vs. Central Bureau of Investigation AIR 2012 SC 830 at

    Para 14 of its Judgment as under:-

    14) “In bail applications, generally, it has been laid down from
    the earliest times that the object of bail is to secure the
    appearance of the accused person at his trial by reasonable
    amount of bail. The object of bail is neither punitive nor
    preventive. Deprivation of liberty must be considered a
    punishment, unless it can be required to ensure that an accused
    person will stand his trial when called upon. The courts owe
    more than verbal respect to the principle that punishment
    beings after conviction, and that every man is deemed to be
    innocent until duly tried and duly found guilty. From the

    7 | Page Bail App 43/2026
    earliest times, it was appreciated that detention in custody
    pending completion of trial could be a cause of great hardship.

    From time to time, necessity demands that some un-convicted
    persons should be held in custody pending trial to secure their
    attendance at the trial but in such cases, necessity is the
    operative test. In this country, it would be quite contrary to the
    concept of personal liberty enshrined in the Constitution that
    any person should be punished in respect of any matter, upon
    which, he has not been convicted or that in any circumstances,
    he should be deprived of his liberty upon only the belief that he
    will tamper with the witnesses if left at liberty, save in the most
    extraordinary circumstances. Apart from the question of
    prevention being the object of a refusal of bail, one must not
    lose sight of the fact that any imprisonment before conviction
    has a substantial punitive content and it would be improper for
    any court to refuse bail as a mark of disapproval of former
    conduct whether the accused has been convicted for it or not
    or to refuse bail to an un-convicted person for the purpose of
    giving him a taste of imprisonment as a lesson.”

    11.This Court in its opinion is fully fortified with the authoritative law

    laid down by the Hon’ble Apex Court cited as Sanjay Chandra Vs.

    Central Bureau of Investigation, (2012) 1 SCC 40 in which the

    bail was granted to the appellant who was involved in economic

    offences. It is profitable to reproduce the relevant paras 24 and 25 of

    the judgment for ready reference:-

    “24. In the instant case, as we have already noticed that the
    “pointing finger of accusation” against the appellants is “the
    seriousness of the charge”. The offences alleged are economic
    offences which have resulted in loss to the State exchequer.
    Though, they contend that there is possibility of the appellants
    tampering with the witnesses, they have not placed any material
    in support of the allegation. In our view, seriousness of the
    charge is, no doubt, one of the relevant considerations while
    considering bail applications but that is not the only test or the
    factor: the other factor that also requires to be taken note of is
    the punishment that could be imposed after trial and conviction,
    both under the Indian Penal Code and Prevention of Corruption
    Act. Otherwise, if the former is the only test, we would not be
    balancing the constitutional rights but rather “recalibrating of
    the scales of justice.”

    “25. The provisions of Cr.P.C . confer discretionary jurisdiction
    on criminal courts to grant bail to accused pending trial or in

    8 | Page Bail App 43/2026
    appeal against convictions, since the jurisdiction is
    discretionary, it has to be exercised with great care and caution
    by balancing the valuable right of liberty of an individual and
    the interest of the society in general. In our view, the reasoning
    adopted by the learned District Judge, which is affirmed by the
    High Court, in our opinion, is a denial of the whole basis of our
    system of law and normal rule of bail system. It transcends
    respect for the requirement that a man shall be considered
    innocent until he is found guilty. If such power is recognized,
    then it may lead to chaotic situation and would jeopardize the
    personal liberty of an individual.”

    12.In “Prahlad Singh Bhati v. NCT, Delhi“, (2001) 4 SCC 280, the

    Hon’ble Apex Court has laid down the special factors for taking into

    consideration while exercising the bail jurisdiction and the relevant

    para 8 of the said judgment is reproduced as hereunder for ready

    reference:-

    “8. The jurisdiction to grant bail has to be exercised on the basis
    of well-settled principles having regard to the circumstances of
    each case and not in an arbitrary manner. While granting the
    bail, the court has to keep in mind the nature of accusations, the
    nature of the evidence in support thereof, the severity of the
    punishment which conviction will entail, the character,
    behaviour, means and standing of the accused, circumstances
    which are peculiar to the accused, reasonable possibility of
    securing the presence of the accused at the trial, reasonable
    apprehension of the witnesses being tampered with, the larger
    interests of the public or State and similar other considerations.
    It has also to be kept in mind that for the purposes of granting
    the bail the legislature has used the words “reasonable grounds
    for believing” instead of “the evidence” which means the court
    dealing with the grant of bail can only satisfy it (sic itself) as to
    whether there is a genuine case against the accused and that the
    prosecution will be able to produce prima facie evidence in
    support of the charge. It is not expected, at this stage, to have
    the evidence establishing the guilt of the accused beyond
    reasonable doubt.”

    13.The observations of the Hon’ble Apex Court laid down in “State of

    U.P. v. Amarmani Tripathi”, (2005) 8 SCC 21 at para 18 of the

    judgment also deserve a needful mention:

    9 | Page Bail App 43/2026

    “18. It is well settled that the matters to be considered in an
    application for bail are (i) whether there is any prima facie or
    reasonable ground to believe that the accused had committed
    the offence; (ii) nature and gravity of the charge; (iii) severity of
    the punishment in the event of conviction; (iv) danger of the
    accused absconding or fleeing, if released on bail; (v)
    character, behaviour, means, position and standing of the
    accused; (vi) likelihood of the offence being repeated; (vii)
    reasonable apprehension of the witnesses being tampered with;
    and (viii) danger, of course, of justice being thwarted by grant
    of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan
    Singh v. State (Delhi Admn.
    )]. While a vague allegation that the
    accused may tamper with the evidence or witnesses may not be a
    ground to refuse bail, if the accused is of such character that his
    mere presence at large would intimidate the witnesses or if there
    is material to show that he will use his liberty to subvert justice
    or tamper with the evidence, then bail will be refused.”

    14.The Hon’ble Apex Court in Sanjay Chandra‘s case cited supra has

    inter alia held at para 40 of the judgment, “the grant or refusal to

    grant bail lies within the discretion of the Court. The grant or denial

    is regulated, to a large extent, by the facts and circumstances of each

    particular case. But at the same time, right to bail is not to be denied

    merely because of the sentiments of the community against the

    accused. The primary purposes of bail in a criminal case are to

    relieve the accused of imprisonment, to relieve the State of the

    burden of keeping him, pending the trial, and at the same time, to

    keep the accused constructively in the custody of the Court, whether

    before or after conviction, to assure that he will submit to the

    jurisdiction of the Court and be in attendance thereon, whenever his

    presence is required.”

    15.The Hon’ble Apex Court in its judgments cited as Siddharam

    Satlingappa Mhetre Vs. State of Maharastra decided on

    02/12/2010, AIR 2011 SC312 and Sushila Aggarwal and others

    10 | P a g e Bail App 43/2026
    vs. State (NCT of Delhi) and Another decided on January 29,

    2020 by a larger bench 2020 SC online 98 , has interpreted law on

    the subject of anticipatory bail with a very wide outlook and while

    interpreting the concept of liberty guaranteed under Article 21 of the

    Constitution of our country in a flexible and broader sense. It has

    been inter alia observed by the Hon’ble Apex Court in the aforesaid

    judgments that the exact role of the accused must be properly

    comprehended before arrest is made. “The inner urge for freedom is

    a natural phenomenon of every human being. Respect for life and

    property is not merely a norm or a policy of the state but an essential

    requirement of any civilized society. Just as the liberty is precious to

    an individual, so is the society’s interest in maintenance of peace,

    law and order.”

    16.The co-accused, namely Mohd. Saleem, stands already released on

    bail. The petitioner-accused is reported to be under detention

    continuously since his arrest in the case on 27.10.2024. There is

    nothing on record suggestive of the fact that the petitioner-accused, if

    admitted to bail, will misuse the concession of bail by repeating the

    commission of the crime or by absconding during the trial.

    17.For the foregoing reasons, the present successive bail application is

    allowed and accordingly, the petitioner is admitted to bail, subject to

    his furnishing surety and personal bonds each in the amount of Rs.

    50,000/- (Rupees Fifty Thousand only), to the satisfaction of the

    learned Registrar Judicial, Jammu Wing of this Court, and the

    11 | P a g e Bail App 43/2026
    Superintendent, District Jail, Kathua, respectively, for assuring the

    compliance of the following conditions.

    i. The petitioner shall remain punctual before the learned

    trial Court on each and every date of hearing.

    ii. The petitioner shall not leave the limits of India without

    the prior permission of the learned trial Court.

    iii. The petitioner shall not repeat the commission of any

    offence.

    iv. In case the requisite surety bond is furnished to the

    satisfaction of the learned Registrar Judicial, Jammu,

    Registry shall issue a formal release order directing the

    Superintendent of District Jail, Kathua, to release the

    petitioner/accused from his custody in the FIR in question.

    18. Nothing in this order shall be construed as any prejudging of or

    interference with the merits of the main case.

    19. The bail petition is, accordingly, disposed of.

    
    
                                                                 (MOHD YOUSUF WANI)
                                                                         JUDGE
    SRINAGAR
    17.07.2026
    Mubashir           Whether the order is speaking: Yes
                       Whether the order is reportable: Yes/No
    
    
    
    
        12 | P a g e                                                   Bail App 43/2026
     



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