Jammu & Kashmir High Court – Srinagar Bench
Bashir Ahmad Bhat vs Ut Of J&K on 30 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 23.04.2026
Pronounced on: 30.04.2026
Uploaded on: 30.04.2026
Whether the operative part or full
judgment is pronounced: Full
CrlM No.1833/2026
In CrlA(S) No.19/2025
BASHIR AHMAD BHAT
...APPLICANT/APPELLANT(S)
Through: - Mr. N. A. Ronga, Advocate.
Vs.
UT OF J&K
...DEFENDANT(S)
Through: - Mr. Ilyas Laway, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
1. By this order, application of the applicant/appellant for
suspension of sentence and grant of bail in a case arising out
of FIR No.230/2021 for offences under Section 8/15 NDPS Act,
is proposed to be disposed of.
2. The applicant/appellant has been convicted of offence
under Section 8/15(c) of the NDPS Act for possession of
commercial quantity of Poppy Straw, in terms of judgment
dated 25.10.2025 recorded by the learned Special Judge
(Designated under NDPS Act), Anantnag (hereinafter referred
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to as “the Special Judge”). Vide order dated 27.10.2025 passed
by the learned Special Judge, the applicant/appellant has
been sentenced to undergo rigorous imprisonment for a period
of ten years and a fine of Rs.1.00 lakh) (rupees one lakh). In
default of payment of fine, the appellant has been directed to
undergo rigorous imprisonment for a further period of one
year.
3. By virtue of the accompanying appeal, the appellant has
laid challenge to the impugned judgment of conviction and
order of sentence on several grounds. The applicant/appellant
has sought suspension of sentence imposed upon him by the
trial court and has also prayed for grant of bail pending
consideration of the appeal.
4. As per the prosecution case, which has been found
established against the appellant in terms of the judgment
under challenge in the accompanying appeal, on 19.08.2021,
the police, while on routine patrolling at Dhonipora adjacent
to National Highway crossing, Anantnag, intercepted a vehicle
(Alto 800) bearing registration No.JK18A-1097, that was
proceeding from Anantnag towards Sangam. During search of
the vehicle, the police party recovered five Nylon bags
concealed inside the vehicle containing a total of 70 kgs of
Poppy Straw. The appellant was found to be incharge of the
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vehicle at the relevant time. After full dressed trial of the case,
charges against the appellant were found established and he
was convicted of offences under Section 8/15(c) of NDPS Act
in terms of judgment dated 25.10.2025 passed by the learned
Special Judge, which is under challenge in the accompanying
appeal.
5. In the application seeking suspension of sentence and
grant of bail, it has been contended that the appellant is an
innocent person and that in view of the grounds projected in
the memorandum of appeal, he is surely going to succeed as
he has a strong prima face in his favour. It has been contended
that the appellant has already undergone more than four years
of imprisonment while facing trial and that decision of appeal
is going to take some time, therefore, he deserves to be
enlarged on bail.
6. The application has been contested by the respondent by
filing its reply, wherein it has been contended that by virtue of
the impugned judgment passed by the learned Special Judge,
it has been proved beyond doubt that the appellant was in
possession of commercial quantity of contraband, therefore,
the provisions of Section 37 of the NDPS Act are attracted to
his case and unless he satisfies the strict conditions for grant
of bail as laid down in the said provision, he cannot be granted
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bail. It has been contended that the impugned judgment
passed by the learned Special Judge is well-reasoned and the
same does not admit of any interference from this Court. It has
been further contended that enlarging the appellant on bail
would give a wrong signal to the society at large as the menace
of drug trafficking has assumed alarmed proportions.
7. I have heard learned counsel for the parties and perused
the grounds of appeal, impugned judgment passed by the
learned Special Judge and the trial court record.
8. It is not in dispute that the appellant has been convicted
of offence under Section 8/15(c) of the NDPS Act and as per
the impugned judgment passed by the learned Special Judge,
he was found to be in possession of commercial quantity of
contraband substance. It is also not in dispute that the
appellant has remained incarcerated during trial of the case
and he has spent more than four years in custody. The
question that arises for determination is whether in a case
where the provisions contained in Section 37 of the NDPS Act
are attracted, a convict can be released on bail merely on the
ground of long incarceration.
9. The aforesaid issue has been a subject matter of
determination and deliberation before the Supreme Court in a
number of cases. In Union of India vs. Rattan Malik, (2009)
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2 SCC 624, the Supreme Court has held that recording of
satisfaction that accused is not guilty of offence and that he is
not likely to commit any offence while on bail is sine qua non
for grant of bail under NDPS Act.
10. Again, in the case of Rattan Kumar Vishwas vs. State
of UP & Ors. (2009) 1 SCC 482, the Supreme Court has, while
considering the issue relating to suspension of sentence
pending consideration of appeal against conviction for offences
under Section 27A and 29 of NDPS Act, held that the person
convicted of offence under NDPS Act should not be released
on bail unless the mandatory conditions provided under
Section 37 that there are reasonable grounds for holding that
the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail, are satisfied.
11. In Preet Pal Singh vs. State of Utter Pradesh, (2020) 8
SCC 645, the Supreme Court has, while drawing a distinction
between grant of bail under Section 439 of Cr. P. C at pre-trial
stage and suspension of sentence under Section 389 of the
Cr.P.C, made the following observations:
“There is a difference between grant of bail
under Section 439 of the CrPC in case of pre-trial
arrest and suspension of sentence under Section
389 of the CrPC and grant of bail, post-conviction. In
the earlier case there may be presumption of
innocence, which is a fundamental postulate of
criminal jurisprudence, and the courts may be liberal,
depending on the facts and circumstances of the case,
on the principle that bail is the rule and jail is an
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exception, as held by this Court in Dataram Singh v.
State of U.P. and Anr. (supra). However, in case of post-
conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. Nor is the
principle of bail being the rule and jail an exception
attracted, once there is conviction upon trial. Rather,
the Court considering an application for suspension of
sentence and grant of bail, is to consider the prima
facie merits of the appeal, coupled with other
factors. There should be strong compelling reasons for
grant of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the order
granting bail, as mandated in Section 389(1) of the
Code of Criminal Procedure.”
12. Relying upon the aforesaid observations, the Supreme
Court has, in the case of State of (GNCT of Delhi) Narcotics
Control Bureau vs. Lokesh Chadha, (2021) 5 SCC 724, held
that where the trial has ended in an order of conviction, the
High Court, when a suspension of sentence is sought under
Section 389(1) of the Code of Criminal Procedure, must be duly
cognizant of the face that a finding of guilt has been arrived at
by the trial judge at the conclusion of the trial. The Court
further observed that while High Court is not deprived of its
power to suspend the sentence, yet it may do so for sufficient
reasons which must have a bearing on the public policy
underlying the incorporation of Section 37 of the NDPD Act.
13. Recently, the Supreme Court in the case of State of
Punjab vs. Sukhwinder Singh @ Gora (SLP (Crl) No.5020 of
2026 decided on April 24, 2026), while setting aside the order
of the High Court granting bail to an accused who had been
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convicted for offences punishable under Section 21(c) and 29
of the NDPDS Act, held that rigour of Section 37 of NDPS Act
cannot be diluted even while bearing in mind right to speedy
trial under Article 21 of the Constitution. It has been further
held that in the matters involving recovery of contraband in
commercial quantity, the twin conditions under Section 37(1)
are necessary. Paras (9) and (10) of the said judgment are
relevant to the context and the same is reproduced as under:
“9. The position of law on the grant of bail in
matters involving recovery of commercial quantity
of contraband under the NDPS Act is well settled.
Section 37(1)(b)(ii) of the NDPS Act is cast in
mandatory terms. Where the Public Prosecutor
opposes the application for bail, the Court can
enlarge an accused on bail only upon recording its
satisfaction on two cumulative conditions: first,
that there are reasonable grounds for believing that
the accused is not guilty of the offence; and
second, that the accused is not likely to commit
any offence while on bail. The recording of such
satisfaction is not a mere formality but a
jurisdictional requirement. This Court in Kashif
(supra) has held, in plain terms, that the non-
recording of the twin satisfaction, being mandatory
in nature, renders an order granting bail
unsustainable. A similar view has been expressed
in Lalrintluanga Sailo (supra) and Ajay Kumar Singh
(supra).
10. When the impugned order is tested against that
settled position, it becomes apparent that
paragraph 8 of the impugned order, which carries
the weight of the reasoning, does not contain a
finding on either of the twin conditions prescribed
by Section 37(1)(b)(ii) of the NDPS Act. What the
High Court has, instead, proceeded on is the
proposition that “the rigors of Section 37 of the
NDPS Act can be diluted bearing in mind the right
to a speedy trial”. The right to speedy trial
under Article 21 of the Constitution is undoubtedly
a valuable constitutional guarantee; but in the
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context of a special statute such as the NDPS
Act dealing with commercial quantity, that right
has to be read alongside, and not in displacement
of, the mandate of Section 37. The omission to
record the twin satisfaction prescribed by the
statute, it appears, may have escaped the
attention of the High Court.”
14. From the foregoing analysis of the legal position, it is clear
that while long incarceration of a convict may be a factor for
considering the issue as to whether constitutional right
guaranteed under Article 21 of the convict stands violated but
in a case where the accused has been convicted of an offence
under NDPS Act which attracts stringent conditions laid down
in Section 37 of the said Act, the Court has to be satisfied that
such conditions are fulfilled before enlarging the convict on
bail.
15. Turning to the facts of the present case, it has been
contended by learned counsel appearing for the appellant that
there are inconsistencies in the statements of prosecution
witnesses and that despite the alleged recovery having taken
place on a highway, no civil witnesses were associated with the
recovery.
16. A perusal of the statements recorded by the trial court
during trial of the case would, prima facie, show that the police
witnesses have supported the prosecution case. At this stage
it may not be proper for this Court to undertake a meticulous
analysis of the statements recorded during trial of the case but
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for the limited purposes of deciding this application, I do not
find that there are any material contradictions in the
statements of prosecution witnesses that would render the
impugned judgment passed by the learned Special Judge
unsustainable in law on a cursory reading of the said
judgment.
17. It has been further contended that safe custody of the
seized contraband and sealed samples has not been proved by
the prosecution in this case. In this regard, the learned Special
Judge has recorded the fact that sealed samples were received
by the FSL and the seals were found intact, which shows that
the integrity of the samples has not been violated. Prima facie,
the reasoning adopted by the learned Special Judge appears to
be well founded though the same may call for a meticulous
analysis at the time of final decision of the appeal.
18. It has also been contended by learned counsel for the
appellant that in the instant case the investigating agency has
not adhered to the provisions of Section 42 and Section 50 of
the NDPS Act and this aspect has been brushed aside by the
trial court. In this context, it is to be noted that from a cursory
reading of the material on record including the evidence lead
by the prosecution, prima facie, it appears that it is a case of
chance recovery and not recovery based on prior information,
as such, provisions of Section 42 of the NDPS Act are not
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attracted to this case. Similarly, the recovery of contraband
substance has been affected from the vehicle of the appellant
and not from his personal search, as such, provisions of
Section 50 of the NDPS Act are also not attracted to the present
case.
19. From an overall reading of the impugned judgment
passed by the learned Special Judge and the cursory look at
the statements of the prosecution witnesses, it cannot be
stated that the appellant is not guilty of the offences for which
he has been convicted. Thus, the conditions stipulated in
Section 37 of the NDPS Act for grant of bail to the appellant
are not satisfied in the present case.
20. So far as incarceration of the appellant is concerned, it is
true that he has been in custody for the last more than four
years but mere fact that he has been in custody for such period
would not entitle him to grant of bail unless it is shown that
there is no likelihood of his appeal being taken up for hearing
in near future. During the course of arguments, learned
counsel for the appellant was given an option of arguing the
main appeal finally but he sought time to argue the same. So,
it is not a case where the main appeal, which has been filed by
the appellant recently in the month of November, 2025, is not
being taken up for hearing by this Court but it is a case where
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learned counsel for the appellant has sought time to argue the
main appeal. Therefore, merely because the appellant is in
custody for the last more than four years, it cannot be stated
that his constitutional right guaranteed under Article 21
stands violated, particularly when the Court was inclined to
hear the main appeal itself.
21. For the foregoing reasons, I do not find any merit in this
application. The same is dismissed, accordingly. The appellant
is, however, given liberty to renew his prayer for suspension of
sentence/grant of bail in case, for a reason not attributable to
the appellant, his appeal is not heard by this Court in next six
months.
22. Anything stated in this order shall not be taken as an
expression of opinion on merits of the appeal.
(Sanjay Dhar)
Judge
SRINAGAR
30.04.2026
“Bhat Altaf-Secretary”
Whether the Order is speaking: YES
Whether the Order is reportable: YES/NO
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