Jammu & Kashmir High Court – Srinagar Bench
Junaid Khursheed War vs Union Territory Through Police on 22 May, 2026
Serial No.6
Suppl. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlM 1272/2025 in CrlA(S) 12/2025
Pronounced on 2205/2026
Junaid Khursheed War
...Petitioner(s)/Appellant(s).
Through: Ms. Asifa Padroo, Advocate
Vs.
Union Territory Through Police
Station Yaripora
...Respondent(s).
Through: Mr. Zahid Noor, GA.
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
22.05.2026
CrlM No. 1272/2025
1. Through the medium of the instant application, the applicant/appellant has
sought the suspension of sentence dated 9/8/2025 passed by the Court of the
Learned Principal Sessions Judge, Kulgam, hereinafter referred to as the learned
trial court, subsequent to the judgment of conviction dated 4/8/2025 passed in
file No.PDS/CNR No. JKKG010003402023 instituted on 7/4/2023, whereby,
after being convicted for the offence under Sections 8/21(c) of the NDPS Act
and 18(c)/27(b)(ii) of the Drugs and Cosmetics Act, he came to be sentenced to
undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lakh for the
commission of offences under Section 8/21(c) of the NDPS Act, with the
stipulation that in case of default in payment of the fine he shall undergo further
rigorous imprisonment of one year and rigorous imprisonment of three years
with a fine of rupees one lakh for the commission of the offence under Section
18(c)/27(b)(ii) of the Drugs and Cosmetics Act, with the stipulation that in case
of default in payment of the fine, he shall undergo further imprisonment of six
months
2. The following grounds have been taken in the main appeal to substantiate
the illegality of the impugned judgment of conviction and order of sentence.
a. That as per the case of prosecution, the Naka party of the concerned
police station apprehended the convict/appellant at about 03:30 PM
at Frisal Village but the evidence led by the prosecution as on
record speaks otherwise. The star prosecution witnesses examined
in the case have stated that the convict/appellant was apprehended
in the early hours of morning of 12-03-2023 and thus the
prosecution story as put in the charge sheet against the
convict/appellant is falsified and belied by its own evidence.
b. That the prosecution story as emerging from the charge sheet as
also from the prosecution evidence is that the bottles of Cofmaster
C of 100 ML each and 09 strips of Alprazolan 1P anxit 05, 135
tablets were recovered from two polythene bags which were hidden
inside the jacket worn by the convict/appellant. However, the
investigation officer neither in the charge-sheet nor in his statement
recorded in the court has even made a whisper about the jacket or
the polythene bags. Neither the jacket nor the polythene bags have
been seized in the case nor have been produced before Court or
before Magistrate while the sealing/re-sealing or sampling was
done.
c. That the jacket from where the illicit contraband was recovered is
an important material evidence in the case and if the same is
missing from the investigation or the prosecution evidence recorded
in the court, it belies the entire prosecution case and a serious doubt
arises that the prosecution has in fact manipulated the story of
seizure of illicit contraband from the convict/appellant.
d. That the prosecution witnesses examined before the Court have
stated that the I.O was present on spot and sampling was done by
the Magistrate on spot but the Magistrate has himself stated that he
was not present at the time of apprehending the accused or at the
time of seizure of the illicit contraband alleged to have been
recovered from the convict/appellant.
e. That the Ld. Trial Court has raised a question in the judgment as to
whether the seizure is proved as per law. While analyzing this issue,
the Ld. Trial Judge has not at all referred to the non-
existence/seizure of the jacket from whereunder the illicit bottles
and strips were allegedly recovered. The Ld. Trial Judge has instead
skipped this aspect of the case and this makes the entire judgment
of conviction and sentence liable to be quashed as there has been
serious miscarriage of justice while deciding this important material
aspect of the case.
f. That the Ld. Trial Judge has not applied its mind while examining
the prosecution witnesses. The prosecution witnesses have stated
that the alleged occurrence took place at about 10:30 AM in the
morning but as per the I.O, the alleged occurrence took place at
around 03:30 PM. The Ld. Trial Judge has missed to find any
explanation from the I.O or from the other prosecution witnesses as
some of them have stated that the alleged occurrence took place in
the early hours of morning at around 10:30 AM and others have
stated that it was around 3:30 PM in the evening. This non-
application of mind by the Ld. Trial Judge to the facts of the case
and the evidence produced before the Court has resulted in
miscarriage of justice and wrong finding of conviction and
consequent sentence has been recorded in the matter as such the
judgment impugned and sentence deserves to be quashed by this
Court.
g. That there is no evidence on record to show that sampling was done
as per the procedure established under law and sealing/re-sealing
was done as per the procedure established under NDPS Act. The
concerned I.O examined in the case has stated that the Magistrate
concerned did the sampling on spot and sealing/re-sealing was done
there but the Magistrate examined in the case as PW-6 has stated
that the alleged contraband was produced before him by the
policeman in his office where the sampling was done by him. The
Ld. Trial Court has missed to appreciate this important material
aspect of the case also and therefore, the impugned judgment of
conviction/sentence is liable to be quashed by this Court.
h. In the examination under Section 313 of CrPC (351 BNSS) the
appellant has been put a question as to what he has to say in regard
to the evidence that 15 bottles of Cofmaster C of 100 ML each and
09 strips of Alprazolan 1P anxit 05, 135 tablets were recovered
from the jacket worn by him from two polythene bags. It is amazing
and astonishing to know that in the prosecution evidence there is no
mention of seizure of the jacket or of the polythene jacket from
which the alleged contraband was recovered. Therefore, putting
irrelevant question which has no basis vitiates the entire trial as
such the judgment impugned and order of sentence deserved to be
quashed by this Court.
i. That the police official who was leading the Naka Party at the
alleged place of occurrence has stated that he himself apprehended
the accused and recovered the illicit contraband from his jacket but
the other witnesses examined by the prosecution who were part of
the Naka Party have stated that it was not the Naka Party leader but
the Constable accompanying him who searched the
accused/appellant and recovered the alleged contraband from jacket
of appellant/accused. This conflict of statements leads to the only
conclusion that either the prosecution story is manipulated one, as
the prosecution witnesses examined are giving different versions of
the occurrence that took place on the spot on the fateful day or else
the witnesses were not the part of naka party and were not present at
the alleged place of occurrence and therefore, either way the
prosecution witnesses examined in the case are not to be believed as
truthful witnesses. The benefit of doubt therefore goes to the
accused/appellant and prosecution cannot be given the benefit of
doubt while appreciating the prosecution evidence. These important
circumstances also make the impugned judgment of conviction and
sentence liable to be quashed.
j. That the articles in which the sealing/re-sealing was done on spot by
the naka party have not been produced before the Court nor have
been identified by the prosecution witnesses in the court which also
causes a serious reasonable doubt on the truthfulness of
prosecution story and makes the conviction and sentence liable to
be quashed.
k. That the Magistrate who has done sampling/re-sealing in the case
has not stated that he found the seized material intact as well or as
to how many seals were present/attached on the bags which
contained the alleged seized contraband substance. This important
aspect of the case also has not been considered and appreciated by
the Ld. Trial Judge which therefore, makes the entire process of
recording the conviction and sentence liable to be quashed.
l. That the learned Trial Court while passing the judgment and order
of sentence impugned has failed to appreciate that the prosecution
did not comply with the provisions of Sections 42 and 50 of the
NDPS Act. The absence of proper authorization, failure to record
reasons for belief, and non-conduct of search in the presence of a
Magistrate vitiates the entire proceedings, rendering the conviction
unsustainable.
m. That the prosecution witnesses gave inconsistent statements
regarding the recovery, number of bottles seized, and the presence
of the Magistrate. These material contradictions raise serious doubts
about the credibility of the prosecution case, entitling the Appellant
to the benefit of the doubt.
n. That the prosecution failed to establish an unbroken chain of
custody of the seized contraband. The discrepancies in sample
markings, weight variations, and lack of clear record of sealing
procedures cast doubt on the reliability and admissibility of the
forensic report.
o. That the learned Trial Court convicted the Appellant despite the
prosecution’s failure to prove conscious possession. While passing
the judgment impugned, the learned Trial Court has ignored
material contradictions, procedural lapses, and misappreciated the
evidence, leading to a miscarriage of justice. The conviction based
on conjectures and surmises violates the Appellant’s fundamental
right to a fair trial under Article 21 of the Constitution of India.
p. The impugned judgment and order of sentence are factually
unsustainable and legally untenable. It suffers from the
misappreciation of evidence on record and faulty conclusions
resulting in grave miscarriage of justice. It also amounts to absence
of a fair trial as wrong conclusions have been recorded. The Ld.
Trial judge has failed to apply his mind to the evidence on record
and therefore the impugned Judgment and order is not sustainable
in law.
q. That in Para 2 of the judgment impugned dated 04-08-2025 it has
been stated that Executive Magistrate Ist. Class Frisal who after
resealing took one bottle from Mark A and one strip from Mark-B
and resealed the property and samples. It is pertinent to mention
here that out of 15 bottles of Cofmaster C of 100 ML each and 09
strips of Alprazolan IP anxit 05, 135 tablets allegedly recovered
from the appellant/accused, sample from only one bottle has been
taken. This ground alone is more than sufficient to quash the
judgment of conviction impugned along with order of sentence as
this Court very recently while allowing the applicant to bail in case
Bail Application No. 19 of 2025 titled Touseef Ahmad Khan V/S
U.T of J&K observed as under: –
“Another aspect of the matter that has come the
light upon perusal of the trial court record is that out
of 11 recovered bottles of codeine, only three bottles
have been sealed and sent to FSL for examination,
regarding which the Chemical Examiner has rendered
his opinion. Thus, there is no opinion of the FSL expert
in respect of other eight recovered bottles. Learned
counsel for the petitioner has contended that in the
absence of the opinion of the FSL expert with regard to
contents of eight recovered bottles, it cannot be stated
that the petitioner was found to be in possession of
commercial quantity of contraband drugs.”
3. The suspension of sentence has been sought on the main grounds that
important factual and legal issues are involved in the main appeal which
necessitate the adjudication of the same. That the appeal has been pending in this
Court since last about nine months and the trial of the case was earlier completed
within two years. That the applicant-appellant, who is a young boy, was on bail
during the trial of the case and did not violate any bail conditions. That the
applicant-convict suffered detention in the case for a period of more than four
years. That he was arrested in the case on 26.04.2021 and came to be bailed out
during some short intervals on proper motions for a total period of 200 days and
is presently under detention in jail as a convict. That the main appeal is likely to
take some more time for its disposal.
4. The respondents have filed objections to the instant application for
suspension of sentence and have resisted the same on the main grounds that the
learned trial Court has convicted the applicant-appellant after conducting a full-
fledged trial, minutely marshalling the evidence and after considering and
appreciating the same. That the applicant-accused has been convicted of
offences which are highly anti-social, having serious ramifications, as the same
run contrary to the larger public interest. That the Court is the guardian and
custodian of the rights and interests of the citizens and, as such, in order to
uphold the majesty of law and to maintain the confidence of the law-abiding
citizens in the justice delivery system, the instant application for suspension of
sentence and grant of bail deserves to be rejected. That since the applicant-
appellant stands convicted and sentenced upon a full-fledged trial, as such, the
presumption of his innocence cannot be considered. That the case of the
applicant-petitioner also attracts the bar under Section 37 of the NDPS Act. The
learned counsel prayed for rejection of the application.
5. I have heard the learned counsel for the parties, who reiterated their rival
stands taken in their pleadings.
6. The learned counsel for the applicant-appellant, inter alia, submitted that
the continued detention of the applicant without early adjudication of his appeal
has seriously infringed upon his fundamental right to life and personal liberty
guaranteed under Article 21 of the Constitution of India. That the main appeal
raises important and substantial questions of law and facts, including serious
procedural irregularities, contradictions in the prosecution evidence, non-
compliance with the mandatory provisions of law, and material infirmities in
investigation, which strike at the root of the prosecution case and render the
conviction unsustainable. He, however, contended that unless the appeal is heard
and decided at the earliest, the applicant-appellant shall continue to suffer
irreparable loss, mental agony, social stigma and undue hardship, which cannot
be compensated in any manner.
7. It was contended that non-compliance with the provisions of Sections 42
& 50 of the NDPS Act was proved during the trial while recording evidence.
That the prosecution witnesses even contradicted themselves during their
depositions with regard to the number of bottles and intoxicant tablets recovered
and seized. That the impugned judgment of conviction passed by the learned
trial court failed to give due credence to the cardinal principle of criminal
jurisprudence that an accused is presumed to be innocent until proved guilty
beyond all reasonable doubt at the trial.
8. The learned counsel for the respondent, while reiterating his stand taken in
the written objections, submitted that the applicant/appellant does not deserve
the concession of suspension of sentence and grant of bail, having been
convicted of highly anti-social offences of serious and grave ramifications for
society. He submitted that the applicant/appellant has been held guilty of the
offences under the judgment of conviction after a full-fledged trial. He
contended that the applicant/appellant has not been able to put forth any concrete
and plausible grounds of challenge in the main appeal.
9. The learned counsel for the non-applicants/respondents, in support of his
contentions, placed reliance on the judgments cited below:
a) State of Punjab vs. Deepak Mattu, (2007) 11 SCC 319
b) Shakuntala Shukla vs. State of Uttar Pradesh and another in Criminal
Appeal No.878 of 2021
c) Kishori Lal vs. Rupa and others reported in (2004) 7 SCC 638,
d) Anil Ari vs. State of West Bengal, (2009) 11 SCC 363 and
e) State of Haryana vs. Hasmat, (2004) 6 SCC 175
10. I have perused the instant application for suspension of sentence and
grant of bail to the applicant-appellant. The memorandum of the main appeal has
also been gone through.
11. Keeping in view the aforesaid perusal and the consideration of rival
arguments advanced at the Bar, this Court, in the facts and circumstances of the
case, is of the opinion that the ends of justice would be met if the sentence
imposed vide order dated 09.08.2025 is suspended during the pendency of the
appeal and the applicant-accused is enlarged on bail, subject to some reasonable
terms and conditions.
12. It is admitted that the right to life and personal liberty is a valuable human
right and a precious facet of our constitutional scheme, and that the power to
curtail the same is a great trust, which must be exercised judicially and not
casually. That the applicant-appellant has remained in custody in the present
case for more than four years when the substantive sentence is ten years.
Admittedly, as contended by learned counsel for the applicant-appellant, the
Hon’ble Supreme Court has time and again stressed the need to bestow due
consideration in cases of long incarceration. Perusal of the memo of the main
appeal reveals that some substantial facto-legal issues have been raised which
require adjudication.
13. The application is allowed, and the order of sentence dated 09.08.2025
passed in the case is placed under suspension, with the applicant-appellant being
enlarged on bail, subject to his furnishing surety and personal bonds to the tune
of Rs. 1 lakh each to the satisfaction of the learned Registrar Judicial of this
Court and the Superintendent of the Jail concerned respectively.
This order shall, however, be subject to fulfilment of the following
conditions:
1) The applicant shall remain present at the proceedings of this appeal.
2) The applicant shall not leave the territorial limits of the Union Territories
of Jammu and Kashmir and Ladakh except with the permission of this
Court.
3) The applicant shall surrender his passport, if any, before the Registry of
this Court against proper acknowledgement under seal and signature, and
in case no passport has been issued in his favour, he shall file an affidavit
to that effect before the learned Registrar Judicial of this Wing.
4) The applicant shall not repeat the commission of the crime.
5) The application is accordingly disposed of.
CrlA(S) 12/2025
1. The main appeal shall come up for hearing on 2nd July, 2026.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
22.05.2026
Shahid Manzoor
