Jammu & Kashmir High Court
At Jammu vs Union Of India Though Narcotic Control … on 21 May, 2026
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
2026:JKLHC-JMU:1593
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 14.05.2026
Pronounced on : 21.05.2026
Uploaded on : 21.05.2026
Bail App No.345/2025
Vicky S/o Late Mukesh Kumar
R/o C-43/291/1 T-HUTS, Faiz Road, Karol Bagh,
Central Delhi, A/p undertrial at District Jail Ambphalla,
Jammu in Crime No.23/2022 NCB, Jammu,
Offences under Sections 8/22/29 NDPS Act, age 33 yeas .... Petitioner(s)
Through: Mr. Ved Bhushan Gupta with
Mr. Rahul Aggarwal, Advocate
Versus
Union of India though Narcotic Control Bureau,
Jammu Zonal Unit, Jammu
......Respondent(s)
Through: Mr. Vishal Sharma, DSGI with
Mr. Eishaan Dadhichi, CGSC &
Mr. Sumant Sudan, Advocate
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. Through the medium of instant petition, petitioner, who is facing
criminal trial in Crime No.23/2022, titled NCB v. Mohd. Ashraf Dar
and others for offences under Sections 8, 22, 29, NDPS Act, pending
before the Court of learned Principal Sessions Judge, Samba (Special
Judge under NDPS Act) (hereinafter to be referred as the “trial
Court”) is seeking his release on bail.
2. The petitioner is accused in Crime No.23/2022 registered at Narcotic
Control Bureau, Jammu for commission of offence punishable under
Sections 8/22/29 of the Narcotic Drugs and Psychotropic Substances
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Act (for short, “NDPS Act“) which, after investigation, is pending
trial before the Trial Court. Initially the petitioner moved a bail
application before the Trial Court seeking his release from the judicial
custody pleading therein that the petitioner has been falsely implicated
in the case, investigation is complete and final report presented and
that there is no likelihood of the completion of trial in near future.
3. The application for bail filed by the petitioner was contested by the
prosecution and the same was dismissed by the Trial Court vide its
order dated 10.07.2025. As is apparent from order dated 07.07.2025
passed by the Trial Court, the petitioner was held not entitled to
release on bail on the ground that since contraband recovered from the
accused persons is of commercial quantity, rigours of Section 37 of
NDPS Act would apply; there is presumption of law under Section 35
read with Section 54 of NDPS Act that accused is presumed to have
committed the offences as indicated in the complaint and was in a
culpable mental state.
4. Aggrieved, the petitioner has moved this Court for his release on bail
in the aforesaid crime/challan on the ground that he has neither
committed any offence nor participated in the commission of the
crime; no direct evidence has been brought against the petitioner and
nothing incriminating against the petitioner has been proved; there is
every likelihood that trial may take couple of more years, as such
continued incarceration of the petitioner would be in violation of his
fundamental right guaranteed under Article 21 of the Constitution of
India.
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5. Before adverting to the grounds on which the petitioner seeks
concession of bail, it would be appropriate to have the prosecution
version. As per the prosecution, a secret information was received by
Rakesh Kumar on 09.12.2022, that huge quantity of codeine based
cough syrup and spasmo proxyvon plus capsules containing tramadol,
loaded from Jupiter Road Lines Transport, a courier company from
Sadar Thana Chowk Delhi in a truck No.JK024F-7801, is coming to
Srinagar via Samba and may reach Chichi Mata Mandir Samba
between 1600 hrs to 1800 hrs on 09.12.2022. On receipt of the
information, direction was issued for constitution of NCB team to
carry out operation and Vijay Kumar Intelligence collected requisite
documents for conducting search and seizure proceedings. On
noticing the truck No.JK04F-7801, driver was asked to stop and NCB
officials introduced himself and informed about the information. The
driver of the truck disclosed his name as Ajaj Mattoo and conductor as
Rauf Ahmad Magray, bills and bilties were checked, which were in
the name of M/s Jupiter Road Lines and one bill was found in the
name of Showkar Ahmad Dar having eight (8) bundles of cosmetic
goods. During search eight cartoons of herbal oil, herbal mehandi oil
and four cartons of sapmso proxyvon plus capsules and four cartoons
of codeine based cough syrup were found.
6. On enquiry, driver and conductor could not provide any valid
document and bill about the restricted items. Contraband was seized
after completing requisite formalities. Notice under Section 67 NDPS
Act was issued to driver and conductor. In their statements, they
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stated that they have no information about the seized narcotics.
During investigation, it was surfaced that on 10.11.2022, Mohd
Ashraf Dar and Riyaz Ahmed Dar came to Jupiter Road Lines
Transport Nagar, Srinagar for receiving seized contraband. In his
statement, Mohd Ashraf Dar deposed that contraband was sent by one
Wasim from Delhi and that Riyaz Ahmed and Mohd. Ashraf Dar were
to collect the same. In his statement, Riyaz Ahmed Dar stated that
contraband was sent by one Wasim and Vicky through Jupiter Road
Lines to Srinagar for them, Ashraf Dar came with him for collection
of consignment of restricted medicines. He further stated that they
purchased Spasmo Proxyvon strips and codeine based cough syrup
from Wasim. They were arrested and the seized narcotic was sent to
CRCL for chemical examination. All the accused were arrested on
different dates and complaint vide Crime No.23/2022 for the
commission of offences under Section 8/22/27-A/29 NDPS Act came
to be filed and is pending trial before the trial Court. The allegation
against the petitioner is that he used to prepare fake bills of herbal
medicines. Charges stand framed against the petitioner on 21.11.2024.
7. Perusal of the record received from the trial Court reveals that only
two out of sixteen prosecution witnesses have been examined so far
before the trial Court.
8. The application is resisted by the respondent, who in its objections has
stated that the petitioner being found involved in commission of
offences under Section 8/22/27/29 NDPS Act, does not deserve
concession of bail. It is stated that after hearing both the parties on
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charge and considering the material and evidence collected during
investigation, the trial Court has prima facie found the offences under
Section 8/22/27/29 NPDS Act established against the petitioner and
accordingly, charged him vide order dated 21.11.2024. It is further
stated that the trial is progressing in accordance with law without any
deliberate delay attributable to the respondent/NCB.
9. Learned counsel appearing for the petitioner has reiterated the
submissions, which he made in support of his bail application before
the Trial Court. He contends that the petitioner has neither committed
any offence nor participated in the commission of any crime and he
has been falsely implicated solely on the basis of statement of co-
accused made under Section 67 NDPS Act, which is inadmissible
evidence; the prosecution has failed to prove anything incriminating
against the petitioner; grant of bail is the rule and its refusal is an
exception; there is likelihood that trial may take couple of years, as
such, continued incarceration of the petitioner in jail would be in
violation of his fundamental right guaranteed under Article 21 of the
Constitution.
10. Learned counsel for the respondent has contested the bail application
on the ground that offence for which the petitioner has been charged is
very heinous and the trial is progressing in accordance with law and
without any deliberate delay attributable to the respondent/NCB.
Learned counsel appearing for the respondent would argue that
material witnesses are yet to be examined, therefore, enlarging the
petitioner on bail at this stage would have adverse affect on the fair
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trial in the case. Learned counsel further argues that having regard to
the fact that the seized contraband is of commercial quantity, rigors of
Section 37 of the Act would apply and unless the Court is satisfied
that there are reasonable grounds to believe that the petitioner is not
guilty of the offence and that he is not likely to commit any offence
while on bail, the bail to the petitioner cannot be granted. It is further
stated that if the petitioner is admitted to bail, there is every
apprehension of petitioner’s misusing the concession of bail, trying to
win over the prosecution witnesses and that other likeminded people
will be encouraged and may repeat the same offence in future.
11. Heard learned counsel for the parties and perused the material
available on record.
12. It is well settled that in cases of recovery of commercial quantity of
contraband, the Courts are necessarily required to record a finding
with regard to Section 37 of NDPS Act that there are grounds to
believe that the accused is not guilty of any such offence.
13. Indisputably, the petitioner came to be implicated in the instant case
solely on the basis of statement made by a co-accused-Mohd. Ashraf
Dar, while he was in custody. In Tofan Singh v. State of Tamil,
Nadu (2021) 4 SCC 1, the Supreme Court has held that since the
officers vested with the power under Section 53 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
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accused under the Act. Relevant extract of the judgment is set out
below:
14. Relying upon Toofan Singh (supra), Supreme Court in the case of
State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta and
another, though held that CDR details of an accused is an aspect to be
considered during trial but refused to cancel bail of the accused
granted by the High Court on the ground that the contraband was not
recovered from their conscious possession. Relevant portion of the
judgment reads thus:
15. From the above quoted judicial pronouncements, it becomes crystal
clear that an accused can be granted bail when he is sought to be
implicated solely on the basis of disclosure statement of the co-
accused and there is no corroborative evidence or sufficient material
with the prosecution to connect him with the commission of crime
punishable under NDPS Act.
16. In the absence of transcript of conversation between the accused
persons, CDRs per se may not be sufficient to establish common
intention of the accused persons to commit the crime of drug
pedalling.
17. Admitted facts are that the banned drug was recovered from the
conscious possession of co-accused Ajaj Mattoo and Rauf Ahmad
Magray, however, the petitioner was implicated in the case on the
basis of statement made by co-accused Mohd. Ashraf Dar under
Section 67 NDPS Act, while he was in custody. Confessional
statement of the petitioner, under Section 67 NDPS Act, was also
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recorded, while he was in custody. Apart from this, petitioner along
with other co-accused was charged on 21.11.2024 and perusal of the
record shows that only two witnesses have been examined so far,
therefore, there is no likelihood of conclusion of trial in near future.
On that account also, continued incarceration of the petitioner is
uncalled for.
18. For all what has been said above, this application is allowed and the
petitioner is directed to be released from custody forthwith subject
following conditions:
i) that he shall furnish a surety bond to the tune of
Rs.1,00,000/- to the satisfaction of the trial Court and a
personal bond of the like amount to the satisfaction of the
superintendent of the concerned jail;
ii) He shall not jump over the bail and temper with the
prosecution evidence in any manner directly or
indirectly;
iii) He shall appear before the trial Court on each and every
date of hearing, unless exempted by the trial Court.
iv) He shall not commit similar offence while on bail; and
v) 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 Courts or to any police officer or temper with
the evidence.
(Moksha Khajuria Kazmi)
Judge
JAMMU
21.05.2026
Vinod, Secy
Whether order is reportable: No
