Jammu & Kashmir High Court
Atif Ahmed Dijoo vs Ut Of Jammu And Kashmir on 15 April, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 379/2025
Reserved on: 08.04.2026
Date of pronouncement:15.04.2026
Date of uploading: 15.04.2026
Whether the operative part or full
judgment is pronounced FULL
Atif Ahmed Dijoo, .....Petitioner(s)/Applicant(s)
Son of Sana-Ullah,
R/o Mohalla Habik Shanpura
Hazratbal, Srinagar.
Through his father
Sana-Ullah, aged 70, S/o Lt. Abdul
Aziz, R/o Mohalla Habik Shanpura
Hazratbal, Srinagar.
Through: Mr. Sunil Sethi, Sr. Advocate with
q
Mr. Ravi Abrol, Advocate.
vs
01. UT of Jammu and Kashmir ..... Respondent(s)
Through police station Bus stand
Jammu.
02.Superintendent, District Jail,
Amphalla, Jammu.
Through: Mr. P. D. Singh, Dy. AG.
CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
01. Petitioner has invoked Section 483 BNSS for his enlargement on bail
in case FIR No. 28/2023, for offences under Sections 8/21/22 NDPS
Act, after an application preferred by him for similar relief came to be
dismissed by learned Special Judge (NDPS cases), Jammu [“the trial
Court”] citing rigour of Section 37 NDPS Act.
02. Background facts of the prosecution case are that on 17.04.2023, a
patrolling party of Police Station, Bus Stand, Jammu at around 1900
hrs. noticed an individual, near Samrat Hotel, coming on foot towards
bus stand. On seeing the police party, when he made an attempt to
give a slip to the police it created suspicion. He was apprehended and
on checking a red coloured printed bag containing 770 capsules of
Spasmo Proxyvon concealed in Kellog’s Corn Flakes Tetra pack and
four packets of Tropicana juice of one ltr. each, containing Corex like
Syrup came to be recovered from his possession. He disclosed his
name as Atif Ahmed Dijoo, the petitioner, and was arrested on the
spot. The investigating agency extracted samples of the capsules and
Corex Syrup and forwarded the same for chemical examination to the
forensic laboratory. As per the FSL report, “Tramadol
Hydrochloride” was detected in the Spasmo Proxyvon capsules and
“Codein Phosphate” was detected in the Corex Syrup and as per the
literature both Tramadol Hydrochloride and Codein Phosphate are
Narcotic Analgesic. The investigation culminated in the presentation
of charge sheet against the petitioner in the trial Court. He came to be
charged by the trial Court on 31.07.2023, whereby he pleaded not
guilty and claimed trial, prompting the trial Court to ask for the
prosecution evidence and prosecution so far has examined 06 out of
09 witnesses, cited in the challan.
Bail App No. 379/2025 Page No. 2
03. The petitioner preferred an application for his enlargement on bail in
the trial Court, which came to be dismissed, primarily on the ground
of rigour of Section 37 NDPS Act.
04. Petitioner is aggrieved of the trial Court order inter alia on the
following grounds:
(a) That the issue in the present case has been already considered and
settled by the Hon’ble Court of Jammu and Kashmir and Ladakh
at Srinagar in case titled Touseef Ahmed Khan and granted the
bail as such applicant is also entitled similar treatment.
(b) That the petitioner is also entitled to bail keeping in view the law
laid down by the Hon’ble Supreme court of India in a case
reported as Dataram Singh v. State of U.P., (2018) 3 SCC 22
wherein the Hon’ble Supreme Court of India has held that
discretion of the court to grant bail must be used humanely and
compassionately. The petitioner is always ready and willing to
cooperate not only with the investigating machinery but also
undertakes to appear before the Ld. Trial Court on each and every
date of hearing, therefore, petitioner deserves to be admitted to
bail.
(c) That the entire mandatory procedure prescribed under NDPS Act
from the date of alleged seizure and arrest of the petitioner, has
not at all been properly followed and various contravention and
violations of various provisions of NDPS Act have been committed
by the respondent No. 1.
(d) That the basic rule may perhaps be tersely put as bail not jail
except where there are circumstances suggestive of fleeing from
justice or thwarting the course of justice or creating utter troubles
in the shape of repeating offences or intimidating witnesses and
the like by the Petitioner who seeks enlargement on bail from the
Court. Grant of bail is the rule and its refusal is an exception. TheBail App No. 379/2025 Page No. 3
Hon’ble Supreme Court of India in case reported as State of
Rajasthan v. Balchand, (1977) 4 SCC 308 in which the Hon’ble
Supreme court of India has held that:
“The basic rule may perhaps be tersely put as bail, not jail,
except where there are circumstances suggestive of fleeing from
justice or thwarting the course of justice or creating other
troubles in the shape of repeating offences or intimidating
witnesses and the like, by the applicant who seeks enlargement
on bail from the Court.”
(e) That as per the law laid down by the Apex Court, which has been
followed and reiterated by this Hon’ble Court, it becomes clear
that long incarceration of an under-trial without any likelihood of
conclusion of trial in near future infringes upon the right of speedy
trial of such under-trial especially when the petitioner has already
undergone two and a half years of incarceration.
(f) That seriousness of the charge is not test or factor while
considering the application for bail. This has been held by the
Hon’ble Supreme Court of India in the cases reported as Sanjay
Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40
and Siddharam Satilingappa Mhetra vs. State of Maharashtra
and others (2011) 1 SCC 694.
(g) That Apex Court in Sanjay Chandra (supra) has held that in bail
applications, generally, it has been laid down from the earliest
times that the object of bail is to secure the appearance of the
accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventative. Deprivation of
liberty must be considered a punishment unless, it is required to
ensure that the accused person will stand his trial when called
upon. The Courts owe more than verbal respect to the principle
that punishment begins after conviction and that every man is
deemed to be innocent until duly tried and duly found guilty.
Bail App No. 379/2025 Page No. 4
(h) That it is trite position of law that If a person is deprived of his
liberty under a procedure which is not ‘reasonable’, fair and just,
such deprivation would be violative of his fundamental right under
Article 21 and he would be entitled to enforce such fundamental
right and secure his release. Speedy trial is a fundamental right
implicit in the broad sweep and content of Article 21 of the
Constitution of India. The aforesaid Article confers a fundamental
right on every person not to be deprived of his life or liberty except
in accordance with the procedure prescribed by law.
(i) That in the instant case, there is every likelihood that this Hon’ble
Court may take couple of years more to finally conclude the trial
and continued incarceration of the petitioner in jail would be
blatant violation of his fundamental right guaranteed under
Article 21 of the Constitution of India.
(j) That the Ld. Trial Court while dismissing/rejecting the bail
application filed by the petitioner has not at all properly
appreciated the judgments of Hon’ble Supreme Court and Hon’ble
High Court which have been relied upon by the petitioner.
(k) That the petitioner belongs to respectable family and has deep
root in the society. At no point of time throughout his life, the
petitioner has committed any offence muchless an offence which is
punishable under any provisions of law. The petitioner holds
significant respect and dignity and because of his arrest, his
reputation and image in the eyes of public at large has been
completely tarnished.
(l) That the petitioner undertakes to abide by all such terms and
conditions as are found just and proper by this Hon’ble Court
while admitting the petitioner to bail. The petitioner has sufficient
means to furnish the requisite sureties to the complete satisfaction
of this Hon’ble Court or police/jail authorities.
Bail App No. 379/2025 Page No. 5
(m) That the petitioner further undertakes that he will not jump
over the bail and shall abide by all such terms and conditions as
are found just and proper by this Hon’ble Court and further
undertake to appear before the Ld. Trial Court on each and every
date of hearing.
(n) That the applicant in terms of chapter XV of Jammu and Kashmir
High Court rules respectfully submits that he has not moved
similar bail application before the Supreme Court and further
submits he has not involved in any other criminal case except the
present one against whom petitioner is moving the present bail
application after the same has been dismissed by Court below.
05. Respondents have opposed the present application, primarily citing
rigor of Section 37 NDPS Act. It is also contention of the respondents
that detailed discussion and critical analysis of the evidence produced
by the prosecution during the trial at the time of consideration of bail
application is not permissible in law. Minor
contradictions/discrepancies cannot be looked into while hearing a
bail matter. It is also urged that in view of involvement of the
petitioner in a heinous nature of crime which carries a severe
punishment, there is every apprehension that he may influence the
prosecution witnesses.
06. Heard arguments, perused the file and the trial Court record.
07. Mr. Sunil Sethi, learned Sr. counsel appearing for the petitioner while
reiterating the grounds urged in the memo of petition has argued that
if prosecution evidence is evaluated for the limited purpose, we will
Bail App No. 379/2025 Page No. 6
find that there are reasonable grounds to believe that petitioner has
not committed any offence under the NDPS Act.
08. Ex adverso Mr. P. D.Singh, learned Dy. AG has argued that since a
commercial quantity of drugs has been recovered from the conscious
possession of the petitioner, and Section 37 NDPS is attracted, he
does not deserve the liberty of bail.
09. In cases of recovery of a commercial quantity of contraband in NDPS
cases, where a bail plea is opposed by the public prosecutor or the
State/UT, accused is obliged to satisfy the Court that there are
reasonable grounds to believe that he is not guilty of such offence and
Court is mandatorily required to return a finding, in the context of
Section 37 of NDPS Act, that accused is not guilty of any such
offence.
10. The case set up by the prosecution is that investigating officer
extracted a sample of 100 ml each of the Corex Syrup from four
packets of Tropicana juice. However, PW Madan Lal Constable, has
stated that a sample of 20 ml of Corex was taken by the investigating
officer in a bottle. Whereas, PW Khem Raj, ASI, another prosecution
witness has stated that bottle in which sample was taken was of 100
ml and full bottle was filled by the IO. It is intriguing to note that
statements of all these witnesses have been belied by none other than
the Executive Magistrate, PW Kuldeep Singh, Naib Tehsildar who
has stated that it was a bottle of 200/250 ml, in which a sample of 100
Bail App No. 379/2025 Page No. 7
ml was taken by the IO. Interestingly, the Executive Magistrate has
emphatically denied that it was a bottle of 100 ml and was fully filled.
11. True it is that at the stage of consideration of a bail plea, an extensive
assessment of the prosecution evidence or merits of the case which
has the potential to prejudice either the case of the prosecution or
defence is not permissible because it is not a relevant consideration at
the threshold stage, however Court is vested with the jurisdiction to
evaluate the prosecution evidence for the limited purpose to formulate
a prima facie opinion about availability of reasonable grounds to
believe that accused has not committed any offence. If the
prosecution evidence, so far brought on record, is analysed for this
limited purpose, what comes to the fore is that 03 material
prosecution witnesses have given three different versions with respect
to the volume of the sample of Corex syrup, extracted by the
investigating agency, against the case set up by the prosecution and
the sample received by the FSL.
12. PW Madan Lal Constable has stated that a sample of 20ml of Corex
was drawn by the IO, PW Khem Raj ASI has stated that it was a
bottle of 100 ml in which sample was taken and full bottle was
filled, whereas the Executive Magistrate PW Kuldeep Singh, Naib
Tehsildar has stated that a sample of 100 ml was taken in a bottle of
200/250 ml by the IO and the Executive Magistrate denied that it was
a bottle of 100 ml and was filled fully. Be that as it may, the
staggering circumstance which needs attention of the Court is that as
Bail App No. 379/2025 Page No. 8
per the FSL report, 04 bottles of 250 ml, which contained liquid of
80 ml was received by it.
13. In the circumstances of the case, the question which falls for
consideration is whether the embargo contained in Section 37 NDPS
Act can be construed to have the same efficacy throughout the
pendency of the trial.
14. The petitioner came to be arrested on 17.04.2023 i.e. about three
years back. 06 out of 09 prosecution witnesses have already been
examined. Remaining three witnesses are two investigating officers
and the scientific officer. In the circumstances of the case,
prosecution cannot be allowed to invoke stringent provisions of
Section 37 NDPS Act in perpetuity and dilute fundamental right of
liberty of the petitioner.
15. Hence, present application is allowed and petitioner is directed to be
released on bail on his furnishing a solvent surety bond to the tune of
Rs. 50,000/- to the satisfaction of learned trial court and a bond of
personal recognizance of the like amount to the satisfaction of
Superintendent of the concerned jail, subject, however to the
following 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 of which
he is accused; andBail App No. 379/2025 Page No. 9
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 Courts
or to any police officer or tamper with evidence.
16. Disposed of.
(Rajesh Sekhri)
Judge
Jammu
15.04.2026
Sushant
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes
Bail App No. 379/2025 Page No. 10