Jammu & Kashmir High Court – Srinagar Bench
Aijaz Ahmad Dar vs Union Territory Of Jammu & Kashmir on 17 April, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App No. 193/2025
Reserved On: 7th of April, 2026.
Pronounced On: 17th of April, 2026.
Uploaded On: 17th of April, 2026.
Whether the operative part or
full Judgment is pronounced: Full.
Aijaz Ahmad Dar, Age: 27 Years
S/O Ghulam Mohammad Dar
R/O Russu, Narbal, District Budgam
Through his wife, namely,
Kulsuma Akhter, Age: 28 Years
W/O Aijaz Ahmad Dar
R/O Russu, Narbal, District Budgam.
... Petitioner(s)
Through: -
Mr Syed Faisal Qadri, Senior Advocate with
M/S Bhat Shafi and Rayees Lone, Advocates.
V/s
1. Union Territory of Jammu & Kashmir,
Through Superintendent,
Central Jail, Srinagar.
2. Station House Officer, Police Station,
Beerwah, Budgam, Kashmir.
... Respondents
Through: –
Mr Bikramdeep Singh, Dy. AG with
Ms Nowbahar Khan, Advocate.
CORAM: HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE.
(JUDGMENT)
01. The Petitioner has invoked the jurisdiction of this Court under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita (for short “the
BNSS”), for his enlargement on bail in a case arising out of FIR No.
111/2022 registered at Police Station Beerwah, Budgam, for the
commission of offences punishable under Sections 8/ 15 and 29 of the
Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as
Bail App No. 193/2025Page 2 of 9
“the NDPS Act“) and Sections 109, 407, 120-B of the Indian Penal Code
(IPC), wherein the Petitioner, along with two other co-accused, namely,
Khursheed Ahmad Dar and Gh. Mohd. Dar, are facing trial for the
commission of aforementioned offences before the Court of learned
Additional Sessions Judge (Fast Track), Budgam (“the Trial Court” for
brevity.)
02. The Petitioner, by virtue of the instant Petition, is seeking bail,
mainly on the ground that he is behind the bars for more than three years
and that all the witnesses, examined so far, have made totally contradictory
statements on the point of recovery of psychotropic substance; that his other
two accused have already been admitted to interim bail by the Trial Court
vide Order dated 3rd of June, 2023, which was subsequently made absolute
vide Order dated 15th of April, 2025, as such, on the basis of parity, he too
deserves the same concession of bail.
03. In opposition, the Respondents have filed their Objections,
inter alia, stating therein that the Petitioner is involved in a heinous crime
where recovery of huge commercial quantity of contraband has been
effected from the joint residential premises of the accused. It is further
stated that the Petitioner has dishonestly cheated the members of public by
falsely representing Government rice as branded rice and induced them to
deliver money, thereby causing wrongful loss to the consumers and
wrongful gain to himself. The Respondents have further pleaded that the
release of the Petitioner, at this stage, poses a serious threat to the fair trial
process and that there exists every possibility that the Petitioner may tamper
with the prosecution evidence, influence witnesses or even abscond from
the jurisdiction of the Court, as such, the bail application filed by the
Petitioner merits outright rejection.
04. Mr Syed Faisal Qadri, the learned Senior Counsel, appearing
for the Petitioner, submits that the poppy straw, weighing 171 KG, was
alleged to have been recovered and seized from the nylon bags from the
Bail App No. 193/2025Page 3 of 9
houses of all the accused and their joint tin shed in the compound and that
all the three accused were arrested, however, the Trial Court had bailed out
two of the accused and denied bail to the Petitioner herein under a
misconception that the Petitioner is the main accused, though the
Respondents, in their Objections, have admitted and so is also borne out
from the record and the evidence led by the Prosecution before the Trial
Court, that the seized contraband had been recovered from the joint
property of all the accused, including the Petitioner herein.
05. He has further argued that out of 31 Prosecution witnesses
cited in the witness calendar, 22 have already been examined, including all
the eye-witnesses and, now, the witnesses left to be examined are either
formal or witnesses to prove charges other than the offences punishable
under the NDPS Act. In this regard, the learned Senior Counsel has drawn
the attention of this Court to the statements of PWs-Mohammad Ayoub
Malik (Sarpanch), Muzaffar Ahmad Khan and Farooq Ahmad Sheikh, who
had been cited as witnesses to the recovery and seizure, and submitted that
all of them have stated that the recovery was made from the tin shed which
was under the joint ownership and possession of all the accused, including
the Petitioner; that even the witnesses, who have been cited as independent
witnesses to the search, recovery and seizure, have also dilated in their
statements that the recovery was made before their arrival on spot and that
the seized material had already been packed. In this behalf, he made
reference to the statements of PW-Mohammad Ayoub Malik and PW-
Abdul Latief Dar.
06. The learned Senior Counsel has further argued that the
Petitioner is entitled to be admitted to bail in view of Section 52 of the
NDPS Act, having been observed in breach by the investigating agency,
inasmuch as, the grounds of arrest were not given to the accused before
their arrest; that the Petitioner seeks the grant of bail on the ground of parity
when the co-accused have already been granted bail facing the same
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charges as the rigor of Section 37 of the NDPS Act, which prohibits grant
of bail without satisfying the Court with regard to twin conditions contained
therein: (a) that the Public Prosecutor is to be heard; and (b) that the bail is
to be granted when the Court is satisfied of the Applicant/ accused being
not guilty, cannot be bifurcated in case of the accused who have been
charged and are facing the same offences; and that the Petitioner, as
undertrial, has been suffering long incarceration of almost four years which
is against his cherished fundamental right of liberty guaranteed under
Article 21 of the Constitution and that since the recovery had not been made
from the person of the Petitioner, as such, the same cannot be stated to be
his conscious possession. He finally prayed that the accused/ Petitioner be
admitted to bail.
07. Mr Bikramdeep Singh, the learned Deputy Advocate General,
appearing for the Respondents, ex-adverso, argued that the Petitioner has
been facing the charge of having in his possession huge commercial
quantity of the contraband, as such, he is not entitled to be enlarged on bail,
unless the Trial Court draws a satisfaction to the fact that the Petitioner is
prima facie found not to be guilty and that, at this stage when most of the
evidence has been led by the Prosecution and the witnesses had made
incriminating statements, such an opinion with regard to the guilt of the
accused-Petitioner cannot be made that he is not guilty of the offences of
which he has been charged.
08. Learned Counsel for the Respondents further argued that the
Petitioner had made two attempts for grant of bail earlier before the Trial
Court and his bail has been rejected; that the ground of parity advanced by
the learned Senior Counsel for the Petitioner is not available to the
Petitioner as the offences for which the Petitioner herein and the co-accused
have been charged are different; and that when the Prosecution has
succeeded to examine as many as 23 witnesses, there cannot be a plea of
long incarceration which can be attributed to the Prosecution, so as to
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entitle the Petitioner for grant of bail. He finally prayed that the instant
Petition be rejected, being devoid of any merit.
09. Heard learned Counsel for the parties and also perused the
pleadings on record. I have also gone through the scanned record received
from the Court below.
10. The Prosecution case, in brief, is that on 8th of August, 2022,
Police Station, Beerwah received an information through reliable sources
that one Aijaz Ahmad Dar Son of Ghulam Mohammad Dar/ Petitioner
herein, in connivance with unknown persons of the Department of Food,
Civil Supplies & Consumer Affairs, is involved in the business of
collecting/ hoarding Government rice meant for distribution among the
ration holders through PDS System and are packing/ selling the same
Government rice in small nylon bags under the mark of “Kamal Special
Brand Rice” and “Apple Special Brand Rice”. The said information also
revealed that the Petitioner had kept the hoarded Government rice in a tin
shed located within his residential premises at Village Russoo, besides, the
Petitioner had also kept the poppy straw packed in nylon bags hidden in the
same tin shed and is looking forward to relocate the same.
11. On the basis of the aforesaid information, Police Station
Beerwah registered a case vide FIR No. 111/2022 for the commission of
offences punishable under Sections 8/15 of the NDPS Act and Sections 407
and 102-B of the Indian Penal Code (IPC), whereafter, investigation was set
into motion.
12. During the course of investigation, search was made in the
afore-stated tin shed, wherefrom 46 Kattas of sealed Government rice, each
Katta weighing 50 KG along with 18 Nylon bags containing poppy straw
like substance with some fresh nylon bags marked as “Kamal Special Brand
Rice” and Apple Special Brand Rice”, numbering 167 in total, were
recovered. The poppy straw recovered from the tin shed, weighing 170 KG
in total, was seized out of which samples were drawn and sent to FSL for
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opinion. After obtaining the opinion, the confirmation of poppy straw was
obtained from the FSL, as such, offences under Sections 8, 15 and 29 of the
NDPS Act read with Sections 407 and 120-B of the Indian Penal Code
(IPC) were proved against the Petitioner-Aijaz Ahmad Dar, whereas, the
offences under Section 29 of the NDPS Act and Section 109 of the Indian
Penal Code (IPC) were proved against the other two co-accused, namely,
Khursheed Ahmad Dar and Gh. Mohd. Dar.
13. Accordingly, on completion of investigation, charge sheet was
laid before the Trial Court and, vide Order dated 21st of October, 2022,
charges were framed against the accused for the commission of offences
punishable under Sections 8/15 of the NDPS Act and Sections 468, 472,
420 and 109 of the Indian Penal Code (IPC).
14. It is noteworthy that in order to bring home the charge against
the accused, the Prosecution has cited as many as 31 witnesses in the
witness calendar, out of which, by now, 22 witnesses have been examined.
15. The Petitioner had moved an application seeking his
enlargement on bail before the Trial Court, however, same was dismissed
by Order dated 30th of August, 2025, mainly, on the ground that a huge
quantity of psychotropic substance (contraband), i.e., 170 KG of poppy
straw, has been recovered from his possession, which falls under the
category of “Commercial Quantity”, as defined under the NDPS Act.
16. At the outset, it needs to be noticed that insofar as the
principles regarding grant or refusal of bail to an accused are concerned, the
same are more or less settled. The considerations that must weigh with the
Court, while deciding a bail application, are as under:
“(i) Whether there is a prima facie or reasonable
ground to believe that the accused has committed the
offence(s);
(ii) Nature and gravity of the charge;
(iii) Se verity of punishment in the event of
conviction;
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(iv) Danger of accused absconding or fleeing, if
released on bail;
(v) Character, behaviour, means, position and
standing of the accused;
(vi) Likelihood of the offence(s) being repeated;
(vii) Reasonable apprehension of the witnesses
being tampered with; and
(viii) Danger of course of justice being thwarted
by grant of bail.”
17. When it comes to offences punishable under the NDPS Act,
particularly those which involve possession of commercial quantity of
contraband substance, the Court, however, has to keep in view something
more than the aforesaid principles. Section 36C of the NDPS Act makes the
Code of Criminal Procedure applicable to the proceedings before a Special
Court, which includes the provisions as to bail and bonds. At the same time,
Section 37 of the NDPS Act stipulates additional conditions before a person
accused of committing an offence, involving commercial quantity of
contraband substance, is released on bail, therefore, it would be apt to refer
to the provisions contained in Section 37 of the NDPS Act:
“37. Offences to be cognizable and non-bailable:
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974):
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence
punishable for offences under Section 19 or
Section 24 or Section 27A and also for offences
involving commercial quantity shall be released
on bail or on his own bond unless:
(i) the Public Prosecutor has been
given an opportunity to oppose the
application for such release, and
(ii) 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
Bail App No. 193/2025Page 8 of 9
offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in
Clause (b) of sub-section (1) are in addition to the limitations
under the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force, on granting of bail.”
18. From a perusal of the aforesaid provision, it is clear that
Section 37 of the NDPS Act is not a complete bar to grant of bail in a case
where recovery of contraband drug falls within the parameters of
commercial quantity. It only provides that bail in such cases cannot be
granted, unless the Public Prosecutor has been given an opportunity to
oppose the application and that there are reasonable grounds to believe that
the accused is not guilty of such offence and that he is not likely to commit
any offence while on bail.
19. Having regard to the aforesaid legal position and adverting to
the facts of the present case, it is seen that the Petitioner, as an accused, is in
custody for the last nearly four years and has been facing trial in a case
wherein 31 witnesses have been cited as Prosecution witnesses, out of
whom, 22 have been examined so far. Though, the Petitioner and the co-
accused have been charged for the commission of different offences under
the NDPS Act, but the main accused is the Petitioner herein, who is alleged
to have kept in his possession huge commercial quantity of poppy straw,
whereas, the other accused are alleged to have abetted him under a criminal
conspiracy.
20. On a perusal of the record from the Court below, it has been
found that most of the witnesses relating to the commission of the offences
under the NDPS Act have been examined and the other witnesses, who are
stated not to have been examined thus far, relate to the commission of
offences punishable under the IPC, so as to prove the commission of fraud
with regard to Government ration, wherein no such rigor is applicable as is
applicable in the case of the NDPS Act. That being so and keeping in view
the factum of grant of bail to the other co-accused in the same offences, this
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Court is of the considered opinion that the Petitioner herein, as co-accused,
is entitled to seek parity for grant of bail, especially when the possession,
recovery and seizure of the alleged commercial poppy straw (contraband
substance) has to be attributed jointly to them, from their joint property.
21. Apart from the above, on perusal of the statements of the
witnesses examined during trial by the Trial Court, without commenting
upon their merit in evidence, lest it may affect the case, this Court is of the
considered opinion that the Petitioner herein is also entitled to be admitted
to bail, at this stage, when he has already undergone nearly four years of
detention as an under-trial and the co-accused have been admitted to bail by
the Trial Court.
22. Having regard to the foregoing reasons and the discussion
made hereinabove, the present Petition is allowed and the Petitioner is
admitted to bail in connection with case bearing FIR No. 111/2022
registered in Police Station Beerwah, Budgam, subject to the conditions to
the satisfaction of the Trial Court.
23. Copy of this Judgment be forwarded to the learned Trial Court
for information and compliance.
24. Disposed of, accordingly, along with pending application(s), if
any.
(M. A. CHOWDHARY)
JUDGE
SRINAGAR
17th April, 2026
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document
