Asif Amin Thoker Th. His Sister vs Union Territory Of J And K Th on 9 March, 2026

Jammu & Kashmir High Court – Srinagar Bench

Asif Amin Thoker Th. His Sister vs Union Territory Of J And K Th on 9 March, 2026

                                                             Serial No. 14
                                                           Regular Cause List
     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                               Bail App 21/2026
Asif Amin Thoker Th. His Sister
                                                 ...Petitioner(s)/Appellant(s).
Through:     Mr. Mir Umar, Advocate
                               Vs.
Union Territory of J And K Th.
S.H.O P/S Qazigund                                          ...Respondent(s).
Through:       None

CORAM: HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
                                   ORDER

09.03.2026

1. There is no representation on part of the respondent-UT.

SPONSORED

2. Notice issued in the matter to the respondent through the office of
learned Sr.AAG, Srinagar, is reported to have been sent on 05.03.2026.
However, it has been reported by the Registry that the said notice has not
been received back with the report of service.

3. Through the medium of the instant application, the petitioner seeks the
grant of short-term bail in his favour in case FIR No. 255/2021 under
section 8/15, 29 of NDPS, Act, the final report/challan culminating from
the same is reported to be pending trial in the court of learned Principal
Sessions Judge Kulgam, on the main ground that his minor daughter
namely Aleeza, aged about 07 years, who has been suffering from a
congenital cleft palate condition and has been advised to report for
admission to undergo Palatoplasty (Cleft Palate Repair Surgery) at Super
Specialty Hospital, Shireen Bagh, Srinagar.

4. It has been inter alia submitted in the application that Palatoplasty
(cleft palate repair surgery) is a delicate reconstructive surgical procedure
involving closure of the opening in the roof of the mouth and
reconstruction of palatal muscles, requiring pre-operative preparation and
post-operative parental care and supervision. That the minor child is of
tender age and requires emotional, psychological, and physical support of
her father before and after surgery. That the presence of the petitioner is
indispensable during hospitalization and recovery of the child. That the
petitioner has already filed a regular bail application which is pending
adjudication in this Court. That the provisions of the Section 37 of NDPS,
Act do not operate as a bar in case where bail is sought on exclusively
humanitarian grounds. That the petitioner shall abide by any conditions that
may be imposed by this Court.

5. In view of the forthcoming holidays with effect from 13 th March, 2026
to 22nd March, 2026, this Court is of the opinion that having regard to the
exigency of the matter, the petition needs to be taken for its disposal at this
time.

6. The petitioner happens to be the father and the natural guardian of the
minor girl aged about 7 years, who is scheduled to get admitted at Super
Specialty Hospital, Shireen Bagh, Srinagar on 25 th March, as a documented
case of congenital cleft palate condition for undergoing surgery
(Palatoplasty). The petitioner has sought the short term concession of bail
in his favour in connection with the scheduled surgery of his minor
daughter on humanitarian grounds. The petitioner is alleged to be involved
in case FIR No. 255/2021 of Police Station Qazigund and presently facing
trial in the court of learned Principal Sessions Judge, Kulgam as a co-
accused. The commercial quantity of 56 kg poppy straw is alleged to have
been seized in respect of case FIR.

7. This Court is of the considered opinion that it may meet the ends of
justice in case the application is allowed and the petitioner is granted short-
term bail for a period of thirty days with effect from 21st March, 2026.

8. This Court can derive its authority from the provisions of the Section
483 of the BNSS read with the provisions of Article 21 of the Constitution,
to address an eventuality, like the present one and pass the appropriate
orders regarding temporary bail subject to some stringent conditions, under
exceptional and compelling circumstances. After all, a health issue even of
a relative or a family member of a detenue is of paramount consideration.
All under trial and convicts have their fundamental right to claim proper
medical care and treatment. However, the conditions viz. gravity of the
offences charged against an accused, likelihood of his absconding at the
trial and influencing the prosecution witnesses, impact of the crime charged
against the accused on the society and State shall weigh the consideration
of a court while overlooking the statutory bars. When bail is to be
considered on humanitarian grounds, the merits of the case do not apply.
The basic power to grant bail is derived from the procedural law i.e. BNSS/
CrPC and the limitations on the power of a court imposed either by the
procedural law or any other special statue, can under some compelling
circumstances be read with the relevant provisions of the Constitution and
some extra-ordinary provisions itself contained in the procedural law.

Otherwise while considering a bail under Section 483 BNSS in a

routine manner, the statutory restrictions/limitations as laid down under

Section 437 of the Code (corresponding to Section 480 BNSS) have also to

be considered.

9. In its opinion this court is fortified with an authoritative judgment of
the Hon’ble Karnatka High Court cited as “Syed Abdul Ala vs Narcotic
Control Bureau”, South,2003 Cri.L.J 999 (Kar) decided on 17 December,
2002 wherein it has been authoritatively laid down that High Court under
Section 439 of the Code of Criminal Procedure 1973(corresponding to
Section 483 of BNSS) is not powerless to consider bail on humanitarian
grounds not-with-standing the restrictions imposed by section 37 of the
NDPS Act. It has been held in the case concerned that provisions of
Section 37 of the NDPS Act apply where bail is to be considered on merits.
It has been agitated before the Hon’ble Court in the case that power to
grant bail is basically derived from Code of Criminal Procedure and not
from the NDPS Act and the later only qualifies the power of the court
vested under the code. It was held that provisions of Section 37 of NDPS
Act do not clamp or cap powers of the High Court to grant bail under
section 439 of the Code in its entirety. It is profitable to reproduce paras 9
and 10 of the judgment as under:-

“9. The provisions of Section 37 of the NDPS Act make a drastic
departure from the conventional cannons of burden of proof of prima
facie case against the accused on the prosecution even at the stage of
bail. In respect of the offences under the NDPS Act, the onus is on
the accused to prove the innocence/non-complicity in order to secure
bail. The restrictions in Section 37 relates to prima-facie material
regarding the guilt of the accused. The powers of High Court to grant
bail under Section 439 are quite wide and discretionary.
Notwithstanding a prima facie case of guilt, under exceptional
circumstances, the High Court in its discretion can grant bail. The
embargo placed under Section 37 of the NDPS Act operates only
when the Court is considering the bail application on merits. Thus,
the provisions of Section 37 do not clamp or cap the powers of High
Court to grant bail under Section 439 in its entirety. In other words
Section 37 operates only as partial eclipse on the powers of the High
Court. While deciding the application on merits with reference to
prima facie material of guilt then only the provisions of Section 37
operate and they have to be read with the provisions of Section 439
of the Cr. P.C. When the bail is to be granted on other extenuating
circumstances or humanitarian ground like the medical ground, the
powers of the High Court under Section 439 are not curtailed. The
provisions of Section 37 do not operate as a blanket ban on the
powers of the High Court under Section 439 of the Cr. P.C.

10. On careful reading of the decisions of the Supreme Court in
Kishan Lal’s case, I find that there is no ratio laid down to the effect
declaring that Section 37 of the NDPS Act, operates as a total
blanket ban on the powers of High Court under Section 439 of the
Cr. P.C. In the present case, the accused is seeking bail on medical
grounds and the Court is considering the case of the petitioner
dehors, prima facie material of guilt placed by the prosecution. On
humanitarian considerations, the powers of High Court under
Section 439 of the Cr. P.C., to grant bail is not eroded or affected by
the provisions of Section 37 of the NDPS Act.”

10. In “Jasvinder Singh Vs State of J&K” B.A No: 156/2019 decided on
12.04.2021 bail on humanitarian grounds (medical grounds) was granted by
this Court to an accused who was suffering from diabetes, which had
substantially affected his eye sight as per the medical records brought to the
notice of the Court. It was authoritatively held in the case that the Sec 37 of
the NDPS Act only prescribes the limitations on the release of a person on
bail. That the powers to grant bail stand vested with the High Court under
Section 439 of the Code of Criminal Procedure. That Section 37 of the
NDPS Act, comes into play only when bail of a person/accused of an
offence involving commercial quantity of a contraband is being considered
on merits and the limitations contained therein would not apply when bail
is to be granted on humanitarian grounds like medical ground. In such
cases the powers of the High Court U/s 439 of the Cr.P.C are not curtailed.
Thus the provisions contained under Section 37 of the NDPS Act do not act
as a blanket ban on the powers of the High Court U/s 439 of the Cr.P.C.

11. It is a settled legal position that basic human rights cannot be denied
to a person regardless of the allegations of the involvement against him.
Refusing to grant temporary bail on exclusive health grounds may
sometimes endanger his life.

12. For the foregoing discussion, the petition is disposed of by admitting
the petitioner/accused to short-term bail for a period of thirty days with
effect from 21st March, 2026, to enable him to attend to his minor daughter
during her pre and post-surgery period and to facilitate her emotional and
psychological well-being. This order shall, however, be subject to the
following conditions:

i. That the petitioner shall not threaten or intimidate any of the
unexamined prosecution witnesses so as to dissuade them from
making a truthful account of the case during at the trial.
ii. That the petitioner shall surrender before the Superintendent,
District Jail Kathua on 20th April, 2026 and shall continue to be
under trial in the case FIR.

iii. The petitioner shall furnish surety and personal bonds to the
tune of Rs. 50 thousand (Fifty Thousand) each respectively to the
satisfaction of learned Trial Court and the Superintended of Jail
concerned for assuring the conditions of this order
iv. That in case of failure of the petitioner to surrender as
directed, the SHO, Police Station Qazigund shall cause his arrest
and remove him to the District Jail, Kathua for his lodgment as
under-trial in the case FIR No. 255/2021 of Police Station
Qazigund.

13. Disposed of.

(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
09.03.2026
“Mubashir ”