Sr. No. 156 vs Union Of India Through on 29 April, 2026

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    Jammu & Kashmir High Court

    Sr. No. 156 vs Union Of India Through on 29 April, 2026

                                                                                   Sr. No. 156
    
                                                                                       2026:JKLHC-JMU:1234
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
    
                     Bail App No. 361/2025
                                                       Date of pronouncement: 29.04.2026
                                                       Date of uploading: 29.04.2026
    
    
    Salim Khan, Aged 45 years                             ..... Petitioner(s)/Appellant(s)
    S/o Shahzad Khan,
    R/o T-175, Gali No. 4,
    Gautampuri, Jafrabad, Shadra,
    P O Salimpur, District North East
    Delhi, New Delhi.
    A/p lodged at District Jail Kathua.
    Through his son
    Sahid, Aged 22 years,
    S/o Salim Khan,
    R/o T-175, Gali No. 4,
    Gautampuri, Jafrabad, Shadra
    P O Salimpur,
    District North East Delhi,
    New Delhi.
    
    q
                          Through: Mr. Supreet Singh Johal, Advocate.
                     vs
    01. Union of India through                                         ..... Respondent(s)
    Sub-Inspector, Narcotics Control Bureau
    (NCB), Jammu Zonal Unit,
    Office at H. No. 322,
    Sector-C, Sainik Colony,
    Jammu.
    
    02.Superintendent, District Jail,
    Kathua.
                          Through: Mr. Vishal Sharma, DSGI.
    Coram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
    
                                          ORDER
    

    29.04.2026

    01. Petitioner has approached this Court for his enlargement on bail, after

    SPONSORED

    his plea for a similar relief, vide order dated 14.11.2025, came to be
    2026:JKLHC-JMU:1234

    declined by learned Additional Sessions Judge, Kathua [“the trial

    Court”].

    02. Before a closer look at the grounds urged in the petition, it shall be

    appropriate to have an overview of background facts of the case.

    03. Factual matrix of the prosecution case, shorn of verbosity, is that a

    source information was received by Sh. Shubham Yadav, Sub-

    Inspector, NCB, Jammu that on 31.08.2024 at about 0600 hours, four

    parcels booked in the name of Farooq Ahmed Labroo, containing

    Codeine based cough syrup and Spasmo Proxyvon Plus Capsules

    were being transported in a truck bearing Registration No. JK13E

    9954 from Delhi to Srinagar and vehicle was about to pass State Tax

    Enforcement Physical Inspection Hall No. 2 Lakhanpur, Kathua, J&K

    between 1600 hours to 1800 hours. On the receipt of this information

    the NCB team rushed to the spot and intercepted the truck.

    04. As per the prosecution case, driver of the truck disclosed his name as

    Sh. Nazir Ahmad and Khalashi (the conductor) as Umar Gani Laway.

    Both of them were requested by NCB to be independent witnesses, to

    which they agreed. The team asked for builty of the loaded material.

    05. Further case of the prosecution is that in Builty No. 20512, name of

    the consigner was written as Verma Electricals and consignee Farooq

    Ahmed Labroo and “Four electronic goods” was mentioned in the

    builty. The team recovered all the four parcels from the truck.

    06. According to the prosecution, when parcels were opened one by one,

    two Jhoomar lights were recovered from the first parcel, green

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    coloured card box on which “Battery cell” was mentioned was

    recovered from the second parcel, Sarvo cards were recovered from

    the third parcel and three black polythenes, 8 boxes in each polythene

    and sixteen more boxes (total 40 boxes) of Spasmo Proxyvon Plus

    capsules (containing Tramadol) and 25 bottles of Codeine based

    cough syrup, wrapped blue and yellow colour polythene came to be

    recovered from the fourth parcel. The NCB team finalised requisite

    legal formalities including the seizure and sealing of alleged

    contraband on the spot.

    07. NCB team of Jammu along with NCB, Srinagar reached Star Goods

    Carrier, Srinagar on 02.09.2024, with whom parcels were booked for

    transportation. Sh. Irshad Sadiq Runga, who was present in the

    premises of the company called Asif Ishtiyaq, receiver of the parcel.

    He told him on call that his parcels had reached to their Srinagar

    godown. He was called to come and collect the parcels. Said Asif

    Ishtiyaq reached Star Goods Carrier, Srinagar at 1500 hours on

    02.09.2024 to collect the parcels. After the payment, Irshad Sadiq

    Runga handed over the receipt and gate pass to Asif Istiyaq to collect

    his parcels from the godown and when Asif Ishtiyaq was going

    towards the godown to collect his parcels, he was intercepted by NCB

    team and he accepted that said parcels belong to him. On this, Asif

    Ishtiyaq came to be detained by NCB team and the truck bearing

    Registration No. JK01S 6045, which was used by accused Asif

    Ishtiyaq for smuggling of drugs also came to be seized.

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    08. Pertinently, accused Asif Ishtiyaq during his statement under Section

    67 NDPS Act on 03.09.2024, according to the prosecution revealed

    that he had ordered the contraband in question from Salim Khan, the

    petitioner herein, and had paid around Rs. 65000/- to him through his

    ATM card, that was given to him when he had visited Delhi. The

    accused Asif Ishtiyaq is also alleged to have disclosed that he along

    with his friend Zissan Hilal Zargar would sell these drugs in double

    rates in Srinagar.

    09. On this revelation, a notice under Section 67 NDPS Act came to be

    issued to the petitioner. Statement of the petitioner came to be

    recorded on 27.10.2024 under Section 67 NDPS Act in which,

    according to the investigating agency, he disclosed that he had

    parcelled the seized contraband to Asif Ishtiyaq on 27.08.2024 faking

    the parcels as electronic items for HA electrics.

    10. The investigating agency also recorded statement of Irshad Sadiq

    Runga under Section 183 BNSS, in which he is alleged to have stated

    that seized contraband was booked by the petitioner and sent to

    accused Asif Ishtiyaq on 27.08.2024 and on being asked about bill

    and ID of receiver, petitioner replied that he would provide the said

    documents at the time of delivery. The investigating agency also

    recovered mobile phones of both Asif Ishtiyaq and petitioner and

    statements of accounts of accused persons from the concerned banks

    were also obtained by the investigating agency. Aside, the

    investigating agency also obtained CDRs and CAFs with certificate of

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    63 of BSA (65B of IEA) from the concerned service providers

    through Nodal Officer of J&K Circle.

    11. The investigation eventually culminated in the presentation of charge

    sheet in the trial Court.

    12. The petitioner and co-accused came to be charged by the trial Court,

    whereby they pleaded innocence prompting the trial Court to call for

    the prosecution evidence and so far one prosecution witness is stated

    to have been examined by the trial Court.

    13. The petitioner approached the trial Court for emancipation, however,

    his bail plea came to be rejected primarily on the grounds of gravity

    of the charge and bar of Section 37 NDPS Act.

    14. The petitioner has taken an exception to the verdict of learned trial

    Court predominantly on the grounds that contraband was not

    recovered from his conscious possession, whereas driver and

    conductor of the truck, from which the contraband came to be

    recovered have been cited as prosecution witnesses. It is also

    contention of the petitioner that he is neither the consigner nor the

    consignee of the contraband and therefore there is no prima facie

    evidence suggesting his involvement in the crime.

    15. The plea has been opposed on the other side by the respondent inter

    alia on the grounds of seriousness of the charge and severity of the

    punishment attached to it. It is also contention of the respondent that

    since a commercial quantity of contraband came to be recovered in

    the present case and petitioner has been charged inter alia for offence

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    under Section 29 NDPS Act, Section 37 NDPS is attracted and he is

    not entitled to the liberty.

    16. Having heard learned counsels for the parties, I have gone through the

    record.

    17. While learned counsel for the petitioner has reiterated the grounds

    urged in the memo of petition, Mr. Vishal Sharma, learned DSGI has

    opposed the present application on the ground of rigor of Section 37

    NDPS Act.

    18. The courts while considering a bail plea, in cases of recovery of

    commercial quantity of contrabands in NDPS cases, are mandatorily

    required to return a finding, in the context of Section 37 of NDPS Act

    that accused is not guilty of any such offence.

    19. Undisputed facts of the case are that petitioner came to be implicated

    in the present case, solely on the basis of statement made by co-

    accused Asif Ishtiyaq, while he was in custody, that he had ordered

    the consignment from the petitioner and paid him Rs. 65000/- from

    his ATM card.

    20. A three Judge Bench of Hon’ble Supreme Court, in Tofan Singh Vs.

    State of Tamil Nadu; (2021) 4 SCC 1, has held that since the

    officers vested with the power under Section 53 of NDPS Act are

    “Police Officers”, any confessional statement recorded by them under

    Section 67 NDPS Act will remain inadmissible under Section 25 of

    the Evidence Act and cannot be taken into consideration to convict an

    accused under the Act.

    Bail App No. 361/2025 Page No. 6

    2026:JKLHC-JMU:1234

    Relevant excerpt of the judgement, reads as below:

    “158.1. That the officers who are invested with powers under Section 53 of the
    NDPS Act are “police officers” within the meaning of Section 25 of the
    Evidence Act, as a result of which any confessional statement made to them
    would be barred under the provision of Section 25 of the Evidence Act, and
    cannot be taken into account in order to convict an accused under the NDPS
    Act
    .

    158.2 That a statement recorded under Section 67 of the NDPS Act cannot be
    used as a confessional statement in the trial of an offence under the NDPS
    Act
    .”

    21. Relying upon the majority judgment in Tofan Singh (supra) Hon’ble

    Supreme Court in State by (NCB) Bengaluru vs. Pallulabid Ahmad

    Arimutta and Anr.; 2022 (1) RCR (Criminal) 762 though ruled that

    CDR details of an accused is an aspect to be examined during the

    trial, but refused to cancel bail of the accused, granted by the high

    Court on the ground that contraband was not recovered from their

    conscious possession.

    Relevant excerpt of the judgment captured in paras 9 and 10 for the

    facility of reference has been extracted below:

    “9. Having gone through the records alongwith the tabulated statement of
    the respondents submitted on behalf of the petitioner-NCB and on
    carefully perusing the impugned orders passed in each case, it emerges
    that except for the voluntary statements of A-1 and A-2 in the first case
    and that of the respondents themselves recorded under Section 67 of the
    NDPS Act, it appears, prima facie, that no substantial material was
    available with the prosecution at the time of arrest to connect the
    respondents with the allegations levelled against them of indulging in
    drug trafficking. It has not been denied by the prosecution that except for
    the respondent in SLP (Crl.) No. 1569/2021, none of the other
    respondents were found to be in possession of commercial quantities of
    psychotropic substances, as contemplated under the NDPS Act.

    10. It has been held in clear terms in Tofan Singh Vs. State
    of Tamil Nadu
    , (2021) 4 SCC 1, 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. In the teeth of the aforesaid decision,
    the arrests made by the petitioner-NCB, on the basis of the

    Bail App No. 361/2025 Page No. 7
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    confession/voluntary statements of the respondents or the co-accused
    under Section 67 of the NDPS Act, cannot form the basis for overturning
    the impugned orders releasing them on bail. The CDR details of some of
    the accused or the allegations of tampering of evidence on the part of
    one of the respondents is an aspect that will be examined at the stage of
    trial. For the aforesaid reason, this Court is not inclined to interfere in the
    orders dated 16th September, 20T9, 14th January, 2020, 16th January,
    2020, 19th December, 2019 and 20th January, 2020 passed in SLP
    (Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.)
    No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No.
    2080/2021 respectively. The impugned orders are, accordingly, upheld
    and the Special Leave Petitions filed by the petitioner-NCB seeking
    cancellation of bail granted to the respective respondents, are dismissed
    as meritless.”

    22. It is manifest from the afore-quoted enunciation of law by Hon’ble

    Supreme Court that an accused can be granted the concession of

    regular bail when he is sought to be implicated solely on the basis of

    the disclosure statement of co-accused, recorded in custody, and there

    is no other corroborative evidence or substantial material available

    with the sprosecution to connect him with the allegations of drug

    peddling.

    23. In so far as CDRs/CAFs and tower locations are concerned, in the

    absence of transcript of conversations exchanged between accused

    persons, mere call details or call data records or mere contact of the

    petitioner with co-accused cannot considered to be a corroborative

    material to connect him with the commission of the crime. It may

    reveal that in or around the time of the occurrence petitioner was in

    contact with the co-accused, receiver of the alleged contraband,

    however, since there is no transcript of the conversations between

    accused persons, call details per se would not be sufficient to

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    corroborate that they had common criminal intention of drug

    peddling.

    24. The positive case of the prosecution is that NCB received a source

    information that four parcels booked in the name of Farooq Ahmed

    Labroo containing the contraband in question were being transported

    from Delhi to Srinagar. The vehicle came to be intercepted at

    Lakhanpur. As per the Builty No. 20512 presented by the driver of

    the truck, consigner of the truck was Verma Electricals and consignee

    was Farooq Ahmed Labroo. The consignment was booked with the

    Star Goods Carrier, Srinagar and Asif Ishtiyaq received the parcel

    from godown of the said company. It is manifest from the sequence of

    these events, part and parcel of the charge sheet that petitioner is

    neither the consigner nor the consignee nor receiver of the parcel

    containing the alleged contraband. In short, the contraband has not

    been recovered from the conscious possession of the petitioner and he

    came to be implicated in the case solely on the basis of statement

    made by the co-accused Asif Ishtiyaq under Section 67 NDPS Act,

    while he was in custody, which has per the legal precedents discussed

    in the preceding paras is inadmissible in evidence. In the

    circumstances of the case, the embargo contained in Section 37 NDPS

    Act cannot be construed to have the same efficacy.

    25. For the foregoing reasons, petition is allowed and petitioner is

    directed to be released on bail on his furnishing a solvent surety bond

    to the tune of Rs. one lac, to the satisfaction of learned trial Court and

    Bail App No. 361/2025 Page No. 9
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    a bond of personal recognizance to the satisfaction of Superintendent

    of the concerned jail, subject, however to the conditions that:

    (i) he shall not jump over bail and tamper the prosecution

    evidence;

    (ii) he shall not leave territorial jurisdiction of the trial court

    without prior permission;

    (iii) he shall not commit an offence similar to the offence he is

    accused of; and

    (iv) he shall not directly or indirectly make any inducement, threat

    or promise to any person acquainted with the facts of the case

    so as to dissuade him from disclosing such facts to the trial

    Court.

    26. It is however made clear that nothing observed in this order shall be

    construed as an expression of opinion on the merits of the case.

    27. Disposed of.

    (Rajesh Sekhri)
    Judge

    Jammu
    29.04.2026
    Sushant

    Whether the order is speaking? Yes
    Whether the order is reportable? Yes

    Bail App No. 361/2025 Page No. 10

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