Jammu & Kashmir High Court – Srinagar Bench
Farooq Ahmad Mir & Another vs Ut Of J&K on 7 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No.5
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Pronounced on:07.04.2026
Uploaded on: 15.04.2026
Whether the operative part
or full judgment is
pronounced: Full
Bail App No.114/2025
FAROOQ AHMAD MIR & ANOTHER
...PETITIONERS/APPELLANT(S)
Through: - Mr. Mir Umar, Advocate.
Vs.
UT OF J&K ...RESPONDENT(S)
Through: - Mr. Faheem, GA, vice
Mr. Ilyas Laway, GA
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
1) The petitioners, through the medium of present
petition, have sought bail in a case arising out of FIR
No.158/2023 for offences under Sections 8/15 read with
Section 29 of NDPS Act registered with Police Station,
Rajbagh, Bijbehara, which is stated to be pending before the
Court of Special Judge (Designated under NDPS Act),
Anantnag (for short “the Special Judge”).
2) As per the allegations made in the challan filed against
the petitioners, on 04.07.2023, P/S Bijbehara received
source information to the effect that petitioner No.1 has
Bail App No.114/2025 Page 1 of 10
concealed a large quantity of contraband substance in his
residential house at Tulkhan Bijbehara. Upon receipt of this
information, FIR No.158/2023 for offences under Section
8/15 and 29 of NDPS Act came to be registered and
investigation was set into motion. During the course of
investigation, one KG Poppy Straw was recovered from the
residential house of petitioner No.1. He was taken into
custody on 04.07.2023, whereafter he made a disclosure
statement that he along with his associate, petitioner No.2
herein, have concealed more quantity of Poppy Straw under
a heap of grass at Tulkhan Bijbehara.
3) On the basis of aforesaid disclosure statement made by
petitioner No.1, the police in presence of the Executive
Magistrate, 1st Class, reached the spot and it was found that
petitioner No.2 is loading Poppy Straw in a load carrier
bearing registration No.JK03E-6443 with a view to
relocate/conceal the Poppy Straw. The load carrier along
with six quintals of Poppy Straw (60 bags) were seized in
presence of the Executive Magistrate. Petitioner No.2 was
arrested on 05.07.2023.
4) Upon seizure and sealing of the recovered contraband
substance, the samples were drawn and the same were sent
to the FSL for expert opinion. After receipt of opinion of FSL,
Bail App No.114/2025 Page 2 of 10
it was found that the aforesaid offences are established
against the petitioners and, accordingly, the charge sheet
was produced before the learned trial court on 09.09.2023.
5) A perusal of the record would reveal that the charges
for offences under Section 8(c) read with Section 15(c) and
29 of NDPS Act stand framed against the petitioners in terms
of order dated 03.11.2023 passed by the learned trial court.
The record of the trial court shows that out of 20 witnesses
cited in the challan, statements of as many as 11 witnesses
have been recorded so far. It also appears that the learned
trial court vide its order dated 14.05.2025 has declined to
extend the concession of bail to the petitioners and has
rejected their bail application.
6) The petitioners have sought bail in their favour on the
grounds that the learned trial court has, while rejecting bail
application of the petitioners, acted in a mechanical manner
even though there was no material available with it that
would warrant rejection of their bail application. It has been
further contended that independent witnesses have not
supported the search and seizure procedure and no warrant
was obtained before conducting search of the premises of
petitioner No.1. It has been further contended that there are
serious contradictions in the statements of the prosecution
Bail App No.114/2025 Page 3 of 10
witnesses which have not been taken into account by the
learned trial court while declining bail to the petitioners. It
has been further contended that there is delay in trial of the
case and, as such, on this ground also, the petitioners are
entitled to grant of bail.
7) The respondent Investigating Agency has contested the
bail applications by filing its reply to the same. In its reply,
the respondent Investigation Agency, has, besides narrating
the allegations made in the charge sheet, contended that the
petitioners are habitual offenders and they do not deserve
the concession of bail. It has been further contended that
there is sufficient material available on record to connect the
petitioners with the commission of offence and because they
are involved in offences relating to possession of commercial
quantity of contraband substance, as such, they are not
entitled to bail
8) I have heard learned counsel for the parties and
perused record of the case including the trial court record.
9) So far as grant of bail in cases involving possession of
commercial quantity of contraband is concerned, the Court
has to adhere to the procedure and guidelines provided
under the provisions contained in Section 37 of the NDPS
Act, which reads as under:
Bail App No.114/2025 Page 4 of 10
“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 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.”
From a perusal of the aforesaid provision, it is clear
that in the cases involving offences relating to possession of
commercial quantity of contraband substances, in addition
to the restrictions imposed by the Code of Criminal
Procedure for grant of bail, certain other conditions have
been imposed on the power of the Court to grant bail. These
conditions include a prior notice to the Public Prosecutor
who has to be given an opportunity to oppose the bail
Bail App No.114/2025 Page 5 of 10
application. Further the Court has to be satisfied that there
are reasonable grounds for believing that the person seeking
bail is not guilty of such offence and that he is not likely to
commit any offence while on bail.
10) The expression “reasonable grounds” has been
explained by the Supreme Court in the case of Collector of
Customs, New Delhi vs. Ahmadalieva Nodira, (2004) 3
SCC 549, in the following manner:
“7.The limitations on granting of bail come in only
when the question of granting bail arises on merits.
Apart from the grant of opportunity to the public
prosecutor, the other twin conditions which really have
relevance so far the present accused-respondent is
concerned, are (1) the satisfaction of the Court that
there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he
is not likely to commit any offence while on bail. The
conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being
not guilty has to be based for reasonable grounds. The
expression “reasonable grounds” means something
more than prima facie grounds. It contemplates
substantial probable causes for believing that the
accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision
requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence.”
11) Again, in State of Kerala and others vs. Rajesh and
others, (2020) 12 SCC 122, the Supreme Court has
observed as under:
“21. The expression “reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for
believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the
provision requires existence of such facts and
Bail App No.114/2025 Page 6 of 10
circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the
alleged offence. In the case on hand, the High Court
seems to have completely overlooked the underlying
object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time
being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is
indeed uncalled for.”
12) The Supreme Court has recently, while relying upon
the aforesaid two judgments, in the case of Narcotics
Control Bureau vs. Mohit Aggarwal, 2022 Live Law (SC)
613, observed as under:
“14. To sum up, the expression “reasonable grounds”
used in clause (b) of Sub-Section (1) of Section 37 would
mean credible, plausible and grounds for the Court to
believe that the accused person is not guilty of the
alleged offence. For arriving at any such conclusion,
such facts and circumstances must exist in a case that
can persuade the Court to believe that the accused
person would not have committed such an offence.
Dove-tailed with the aforesaid satisfaction is an
additional consideration that the accused person is
unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an
application for bail in the context of the Section 37 of
the Act, the Court is not required to record a finding
that the accused person is not guilty. The Court is also
not expected to weigh the evidence for arriving at a
finding as to whether the accused has committed an
offence under the NDPS Act or not. The entire exercise
that the Court is expected to undertake at this stage is
for the limited purpose of releasing him on bail. Thus,
the focus is on the availability of reasonable grounds
for believing that the accused is not guilty of the
offences that he has been charged with and he is
unlikely to commit an offence under the Act while on
bail.”
13) From the aforesaid analysis of the law on the subject,
it is clear that for the limited purpose of considering the bail
Bail App No.114/2025 Page 7 of 10
application of the petitioners, this Court has to consider the
material on record so as to ascertain whether the facts and
circumstances are existing that can persuade the Court to
believe that the accused person has not committed the
offence for which he has been booked. The Court has to be
satisfied that there are credible and plausible grounds for
believing that the accused is not involved in the offence
before granting bail to the said accused.
14) In the light of foregoing analysis of law on the subject,
let us now consider the material on record. Before
undertaking such an exercise, it has to be borne in mind
that at the time of considering a plea for grant of bail, the
Court is not expected to meticulously appreciate the
evidence led during trial of the case. It is only if the Court,
on the basis of cursory look at the evidence led by the
prosecution, comes to a prima facie conclusion that the
accused is not guilty of the offence for which he has been
charged, that the accused would be entitled to grant of bail
in a case where he has been booked for possession of
commercial quantity of the contraband substance.
15) The ground projected by the petitioners for grant of bail
is that the evidence lead by the prosecution does not support
its case and, therefore, the petitioners are entitled to bail. In
Bail App No.114/2025 Page 8 of 10
this regard, the learned counsel for the petitioners has
particularly made reference to the statement of PW 4,
Ghulam Rasool Bhat. It has been contended that the said
witness has not supported the prosecution case, particularly
with regard to search of house of petitioner No.1 in his
presence. He has also contended that PW 9, Mohammad
Rafi, has stated that his signatures are not appearing on the
seizure memo, EXPW-1/A and, thus, he has resiled from his
statement recorded during investigation of the case. On the
basis of these grounds, learned counsel for the petitioner has
submitted that there is enough doubt on the veracity of the
prosecution case and on this basis, it can safely be
concluded that the petitioners are not involved in
commission of the offence for which they have been charged.
16) As already stated, at the time of considering a plea for
grant of bail, the Court is not expected to meticulously
appreciate the evidence led during trial of the case. If we have
a look at the statements of the prosecution witnesses, a
perusal of the same would reveal that, prima facie, they have
supported the prosecution version and none of them has
turned hostile. Even though from the statement of PW 4,
Ghulam Rasool Bhat, it appears that he has raised a doubt
about the search of the house of petitioner No.1 having taken
place in his presence, yet the said witness has supported the
Bail App No.114/2025 Page 9 of 10
prosecution case on all other aspects. Similarly, PW 9,
Mohammad Rafi, may have stated that his signatures are
not appearing on the seizure memo, EXPW-1/A, but he has
categorically admitted that seizure of the contraband
substance had taken place in his presence.
17) Mere aberrations and contradictions here and there in
the statements of the prosecution witnesses would not lead
this Court to the conclusion that there are reasonable
grounds for believing that the petitioners are not guilty of the
offences for which they have been charged, particularly when
most of the prosecution witnesses have prima facie
supported the charges against the accused. Thus, the
conditions laid down in Section 37 of the NDPS Act are not
satisfied in the present case. Therefore, the petitioners are
not entitled to the concession of bail.
18) For the foregoing reasons, I do not find any merit in
these petitions. The same are dismissed accordingly.
(Sanjay Dhar)
Judge
SRINAGAR
07.04.2026
“Bhat Altaf-Secy”
Whether the Judgement is speaking: YES
Whether the Judgement is reportable: YES
Bail App No.114/2025 Page 10 of 10
