Jammu & Kashmir High Court
Jail Rajouri vs Sainik Colony on 3 July, 2026
Sr. No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 89/2025
Date of Pronouncement: 03.07.2026
Uploaded on: 06.07.2026
Mushtaq Ahmed, aged 45 Years,
S/o Gulab Din,
R/o Murrah, Tehsil Surankote,
District Poonch,
presently lodged in
Jail Rajouri .... Petitioner(s)/Appellant(s)
Through:- Mr. Ajay Bakshi, Advocate with
Mr. Ankush Sharma, Advocate
V/s
Union of India
through Narcotics Control Bureau,
Zonal Unit, H. No. 322, Sector-C,
Sainik Colony, Jammu .....Respondent(s)
Through:- Mr. Vishal Sharma, DSGI with
Mr. Karan Sharma, CGSC
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
1. The petitioner is facing trial in a complaint instituted by the respondent-
Narcotics Control Bureau (NCB), Jammu, arising out of Crime Case
No. 07/2024 of Police Station NCB, Jammu, for offences punishable
under Sections 8, 21, 25, 27 and 29 read with Section 60 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS
Act“), which is presently pending before the Court of the learned
Principal Sessions Judge, Rajouri.
2. The petitioner had earlier sought regular bail before the learned trial
Court, which came to be rejected vide order dated 24.02.2025.
Aggrieved thereof, the petitioner has approached this Court by way of
the present bail application.
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3. The prosecution case, in brief, is that on 19.03.2024, the respondent-
NCB received specific secret information that a consignment of narcotic
substance was likely to be transported on 20.03.2024. Acting upon the
said information, an NCB team laid a naka and, at about 5:00 p.m. on
20.03.2024, intercepted a vehicle coming from Lam. Shortly thereafter,
another vehicle also reached the spot. Upon search of one of the
vehicles, the NCB allegedly recovered 1.370 kilograms of heroin,
constituting a commercial quantity under the NDPS Act.
4. The prosecution further alleges that the petitioner was in constant
telephonic contact with co-accused Mohd. Farooq, who had allegedly
received the consignment, and that the Call Detail Records (CDRs)
reveal approximately twenty telephonic conversations between them.
On the strength of the petitioner’s presence at the spot and the alleged
telephonic communication, it is asserted that the petitioner had entered
into a criminal conspiracy with the co-accused for transportation and
possession of the contraband.
5. In its objections, the respondent submits that although no recovery has
been effected from the personal possession of the petitioner, he was an
active participant in the criminal conspiracy along with co-accused
Mohd. Farooq and others. It is further contended that the petitioner, in
his statement recorded under Section 67 of the NDPS Act, admitted his
involvement in the alleged transaction. Since the recovery pertains to a
commercial quantity of heroin, the rigours of Section 37 of the NDPS
Act are attracted, disentitling the petitioner from the concession of bail.
6. Learned counsel for the petitioner, on the other hand, submits that the
entire prosecution case against the petitioner is founded merely upon his
Bail App No. 89/2025 Page 2 of 11
alleged association with the co-accused. It is argued that neither the
complaint nor the charge-sheet contains any material in the nature of
Call Detail Records, voice recordings or transcripts establishing that the
petitioner had conscious possession of, or dominion over, the recovered
contraband. It is further contended that no recovery whatsoever has been
effected from the petitioner and that his mere presence in the company
of the co-accused cannot, by itself, give rise to an inference of conscious
possession or criminal conspiracy. Reliance has been placed upon the
decision of the Hon’ble Supreme Court in Tofan Singh v. State of Tamil
Nadu, 2021 Vol. I Crimes 208, to contend that the alleged confessional
statement recorded under Section 67 of the NDPS Act is inadmissible in
evidence.
7. Per contra, learned counsel appearing for the respondent submits that
the offence involves commercial quantity of heroin and, therefore, the
embargo contained in Section 37 of the NDPS Act squarely applies. It is
argued that the petitioner was present at the place of occurrence, was
acting in concert with the co-accused, and the investigation has
disclosed sufficient material indicating his active participation in the
conspiracy. It is further submitted that the analysis of the petitioner’s
Call Detail Records reveals frequent telephonic contact with co-accused
Mohd. Farooq, including approximately twenty calls around the relevant
period, thereby strengthening the prosecution case regarding criminal
conspiracy and common intention.
8. Heard learned counsel for the parties and perused the record.
9. It is borne out from the digitized record that the complaint filed by the
Narcotics Control Bureau (NCB) before the Court of the learned
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Principal Sessions Judge, Rajouri, stands registered as Challan No.
08/2025, instituted on 09.09.2024, titled UT of JKNCB v. Maqsood Ali
& Ors. The petitioner has been formally charged for the offences
punishable under Sections 8/21/25/27/29 read with Section 60 of the
NDPS Act. The trial has commenced, and one of the prosecution
witnesses has already been examined.
10. The prosecution case, as emerging from the complaint, is that acting
upon specific secret information, the NCB laid a naka at Rajpura and
intercepted vehicle bearing registration No. JK02CS-0572 (Maruti
Baleno), which was allegedly proceeding from Lam. Simultaneously,
another vehicle bearing registration No. JK12C-1357 (Maruti Expresso)
also reached the spot, whereupon its driver alighted and joined the
occupants of the Baleno. Upon search, the NCB allegedly recovered
1.370 kilograms of heroin concealed in the dashboard of vehicle No.
JK02CS-0572. At the relevant time, the Baleno was occupied by three
persons, namely, Mushtaq Ahmed, Sharafat Ali and the present
petitioner, all of whom have been arraigned as accused on the allegation
that they were in conscious possession of the recovered contraband and
had acted pursuant to a common intention and criminal conspiracy.
However, the complaint does not disclose as to who was the owner or
driver of the said vehicle.
11. The prosecution further relies upon the statements recorded under
Section 67 of the NDPS Act, wherein the petitioner is alleged to have
admitted that the recovered contraband belonged to all the accused and
to have disclosed the involvement of certain other persons in the alleged
narcotic transaction. According to the prosecution, the petitioner stated
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that he had accompanied Mohd. Jaffar and Sharafat Ali at the instance
of one Nissar and had agreed to transport the contraband for a
consideration of ₹60,000/-. He is also stated to have named his brothers-
in-law, namely, Farooq, Jaffar, Maqsood and Younis, as participants in
the alleged transaction and further disclosed that upon noticing the NCB
team, Farooq, Jaffar and Younis fled from the spot.
12. Learned counsel for the petitioner, however, has contended that the
prosecution cannot derive any advantage from the statement allegedly
recorded under Section 67 of the NDPS Act in view of the authoritative
pronouncement of the Hon’ble Supreme Court in Tofan Singh v. State of
Tamil Nadu, wherein it has been conclusively held that officers
empowered under Section 53 of the NDPS Act are police officers within
the meaning of Section 25 of the Indian Evidence Act. Consequently,
any confessional statement made before such officers is rendered
inadmissible in evidence, and a statement recorded under Section 67 of
the NDPS Act cannot be treated as a confession for the purpose of
securing conviction.
13. The aforesaid legal position being no longer res integra, the alleged
statement of the petitioner recorded under Section 67 of the NDPS Act
cannot, at this stage, be relied upon as substantive evidence to establish
either conscious possession or criminal conspiracy. Once the said
statement is kept out of consideration, the material placed on record
reveals that the contraband was not recovered from the personal
possession of the petitioner. The sole allegation against him is that he
was travelling in the vehicle from which the recovery was effected.
Mere presence in the vehicle, in the absence of any independent
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material demonstrating conscious possession, knowledge, or active
participation, cannot, by itself, be construed as sufficient to attribute
possession of the recovered contraband to the petitioner.
14. Much emphasis has been laid by the learned counsel for the respondent
on the call detail records (CDRs), which reveal telephonic
communication between the petitioner and, in particular, co-accused
Mohd. Farooq. It is contended that approximately twenty calls were
exchanged between them around the time of the alleged occurrence.
However, the mere existence of such telephonic contacts, by itself,
cannot be construed as constituting a strong prima facie circumstance
sufficient to infer that the petitioner was in conscious possession of the
contraband. Whether such evidence, either independently or in
conjunction with other incriminating material, establishes the
petitioner’s culpability is a matter that necessarily falls within the
domain of appreciation of evidence during the course of trial.
15. Learned counsel for the respondent has further submitted that the
petitioner was one of the occupants of the vehicle from which the
contraband was allegedly recovered and, therefore, it may be presumed
that he shared a common intention with the co-accused in transporting
the contraband. Such a submission, however, is required to be tested on
the touchstone of the evidence brought on record and cannot, at this
stage, be accepted as conclusive of the petitioner’s conscious possession
or complicity.
16. As noticed hereinabove, the objections filed by the respondent are
conspicuously silent regarding the identity of the person who was
driving the vehicle and, consequently, exercising effective physical
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control over it at the relevant point of time. The alleged recovery was
effected from the dashboard of the vehicle, which admittedly had three
occupants. In these circumstances, it was incumbent upon the
investigating agency to collect cogent material identifying the person
who had exclusive or effective physical control over the place from
where the contraband was recovered. In the absence of such material,
the question of attributing conscious possession to the petitioner
assumes significance and is a matter that would require adjudication
upon appreciation of evidence during trial.
17. Learned counsel for the respondent has placed considerable reliance
upon Sections 35 and 54 of the NDPS Act, contending that the statutory
presumptions envisaged therein operate against the petitioner and that it
is for the petitioner, during the course of trial, to rebut such
presumptions. The scope and ambit of these provisions came up for
authoritative consideration before the Hon’ble Supreme Court in Noor
Aga v. State of Punjab & Anr., reported as (2008) 16 SCC 417, wherein
the Court held as under:
“34. The Act contains draconian provisions. It must,
however, be borne in mind that the Act was enacted
having regard to the mandate contained in International
Conventions on Narcotic Drugs and Psychotropic
Substances. Only because the burden of proof certain
circumstances is placed on the accused, the same, by
itself, in our opinion, would not render the impugned
provisions unconstitutional.
35. A right to be presumed innocent, subject to the
establishment of certain foundational facts and burden of
proof, to a certain extent, can be placed on an accused. It
must be construed having regard to the other
international conventions and having regard to the fact
that it has been held to be constitutional. Thus, a statute
may be constitutional but a prosecution thereunder mayBail App No. 89/2025 Page 7 of 11
not be held to be one. Indisputably, civil liberties and
rights of citizens must be upheld.”
18. The aforesaid decision lays down that the presumption of innocence,
which is a cardinal principle of criminal jurisprudence, cannot be
displaced merely because an accusation has been levelled against the
accused alleging possession of contraband. Such presumption yields
only upon the prosecution first establishing the foundational facts
demonstrating that the accused was in conscious possession of, and
exercised control and dominion over, the contraband recovered. It is
only upon proof of such foundational facts that the statutory
presumption under the provisions of the NDPS Act comes into
operation, whereupon the burden shifts upon the accused to rebut the
same by demonstrating that he was not in conscious possession of the
seized contraband.
19. There can be no dispute that the NDPS Act has been enacted with the
avowed object of curbing the menace of illicit trafficking in narcotic
drugs and psychotropic substances and that, over the years, the
Legislature has introduced several amendments rendering its provisions
more stringent and prescribing severe punishments. At the same time,
the rigours of the statute cannot absolve the prosecution of its obligation
to establish the foundational facts necessary to attract the statutory
presumptions. In the present case, save and except the statements
purportedly recorded under Section 67 of the NDPS Act, the material
collected during investigation does not prima facie disclose that the
petitioner was exercising physical control or dominion over the
contraband. The prosecution case, at its highest, only indicates that the
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petitioner was travelling in the same vehicle along with the co-accused
from which the contraband was recovered.
20. Ld. counsel for the respondent has laid considerable emphasis on the
physical presence of the petitioner in the vehicle from which the
contraband was recovered. However, mere presence in the vehicle,
without more, cannot by itself give rise to an inference of conscious
possession. Conscious possession necessarily postulates knowledge
coupled with control over the contraband, both of which must be prima
facie established by cogent material. Admittedly, the recovery was not
effected from the person of the petitioner but from the dashboard of the
vehicle. It is also not the case of the prosecution that the petitioner was
either the driver or the registered owner of the vehicle. In such
circumstances, the inference that the petitioner was in conscious or
exclusive possession of the contraband cannot be readily drawn merely
because he happened to be an occupant of the vehicle. At the stage of
consideration of bail, the Court is not expected to undertake a
meticulous examination of the evidence or record findings touching
upon the merits of the prosecution case, as any such observation may
prejudice the trial. Once the statements recorded under Section 67 of the
NDPS Act are kept out of consideration, prima facie there appears to be
no independent material connecting the petitioner with the conscious
possession of the contraband so as to justify the conclusion that there
are reasonable grounds for believing that he is guilty of the offence
alleged.
21. It is also not the case of the prosecution that the petitioner is a habitual
offender or has any criminal antecedents involving offences under the
Bail App No. 89/2025 Page 9 of 11
NDPS Act or otherwise. The prosecution has been afforded full
opportunity of hearing, and it is not in dispute that the trial has already
commenced with the framing of charges. The contention advanced on
behalf of the respondent that the very fact of framing of charges
constitutes sufficient prima facie material to decline bail cannot be
accepted. The framing of charge is only a tentative judicial
determination based upon the material placed before the Court at that
stage and does not foreclose the accused from seeking regular bail. The
presumption of innocence continues to operate until the charge is
established by legally admissible evidence. Equally, the rigours
contained in Section 37 of the NDPS Act do not eclipse that
presumption where the material produced by the prosecution itself does
not prima facie furnish reasonable grounds for believing that the
accusation of conscious and unauthorized possession of the contraband
against the petitioner is true.
22. The petitioner has remained in judicial custody since 20.03.2024. The
quantity of contraband allegedly recovered is 1.370 kilograms. Having
regard to the period of incarceration already undergone by the
petitioner, the stage of the trial, the absence of any criminal antecedents,
and the nature of the material collected during investigation, particularly
the lack of prima facie evidence demonstrating the petitioner’s conscious
possession of the contraband independent of the statements recorded
under Section 67 of the NDPS Act, this Court is of the considered
opinion that the twin conditions stipulated under Section 37 of the
NDPS Act stand satisfied for the limited purpose of consideration of
bail. Consequently, the petitioner has succeeded in making out a case
Bail App No. 89/2025 Page 10 of 11
for being enlarged on bail, subject to appropriate conditions to secure
his presence during trial.
23. For aforesaid reasons, this application is allowed. Petitioner is directed
to be released on bail, subject to the conditions as laid by the trial Court.
Copy of the order shall be notified to the trial Court for further
compliance.
(Sanjay Parihar)
Judge
JAMMU
03.07.2026
Asif Tantray
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