Jammu & Kashmir High Court
S/O Shamash Din vs Thorugh on 17 July, 2026
Serial No.22
Suppl. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
Bail App 43/2026
CrlM(443/2026)
IMRAN ALI AGED 27 YEARS
S/O SHAMASH DIN ...Petitioner(s)
R/O DADWARA TEHSIL
BILLAWAR DISTRICT
KATHUA
PRESENTLY LODGED IN
DISTRICT JAIL KATHUA
Through: Mr. Aseesh Singh Kotwal, Advocate with
Mr. Pankaj Basotra, Advocate
Vs.
1. UNION TERRITORY OF
JAMMU AND KASHMIR
THORUGH ...Respondent(s).
SUPERINTENDENT
DISTRICT JAIL KATHUA
2. STATION HOUSE OFFICER
POICE STATION BILLAWAR
DISTRICT KATHUA
Through: Mr. Banu Jasrotia, GA vice
Mr. Suneel Malhotra, GA
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
17.07.2026
1. Through the medium of this successive bail petition, the petitioner,
Imran Ali S/o Shamash Din, R/o Dadwara, Tehsil Billawar, District
Kathua, seeks his enlargement on bail in case FIR No. 144/2024
dated 27.10.2024 under Sections 8/21,22,25,27-A,29 of the NDPS
Act, registered at Police Station Billawar, District Kathua, on the
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main grounds that he is innocent and is not directly or indirectly
connected with the commission of the alleged crime. That he had
already approached the learned trial Court, i.e., the Court of learned
Additional Sessions Judge, Kathua, seeking the concession of bail in
his favour, but his prayer was declined vide order dated 19.02.2026
passed by the learned trial Court on his bail petition dated
11.12.2025. That he was arrested in the case on false and frivolous
grounds way back on 27.10.2024 and since then he has been
continuously under detention in the case FIR. That the trial of the
case is going on and is at the stage of recording of prosecution
evidence. That since he has been continuously facing incarceration in
the case FIR for the last more than one and a half years, as such, his
liberty stands curtailed. That the trial of the case has been going on
since 26.12.2024 and the same is likely to take much more time for
its conclusion as most of the prosecution witnesses are yet to be
examined. That a squantity of 4.12 grams of heroin is alleged to have
been recovered from his possession on the date of the alleged
occurrence, i.e., 27.10.2024, which falls under the category of small
quantity. That the co-accused, Mohd. Saleem, with whom he is
alleged to have shared the conspiracy, has already been enlarged on
bail in the matter, from whom a quantity of 6.42 grams of heroin was
allegedly recovered. That even if he is alleged to have committed the
offence under conspiracy, then the total quantity recovered from him
and the co-accused amounts to about 11 grams, which is much below
the commercial quantity, i.e., 250 grams. That the allegations of
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financing illicit traffic in narcotic drugs and psychotropic substances
do not appear to be borne out from the facts and circumstances of the
case. That the Investigating Officer (IO) of the case, during the
course of investigation, despite prior registration of the FIR, failed to
comply with the mandatory provisions of the NDPS Act. That the
search and seizure, as alleged, was not conducted in accordance with
the procedure prescribed under the NDPS Act. That his prolonged
detention amounts to his pre-trial conviction, which is violative of
his fundamental right to life and personal liberty. That he shall abide
by any conditions that may be imposed by this Court while enlarging
him on bail.
2. The respondent-UT has filed its objections in the matter and the
instant bail petition has been resisted on the grounds that the
petitioner is involved in the commission of heinous anti-social
offences punishable under the NDPS Act. The petitioner is alleged to
have been indulging in the illicit trade in narcotic drugs and
psychotropic substances under a conspiracy with the financing of
such trade. A narcotic substance, namely heroin, weighing 4.12
grams, is alleged to have been recovered from his possession, with
the recovery of a further 6.42 grams of the same substance from the
co-accused, Mohd. Saleem. The trial of the case is reported to be
going on, and charges are reported to have already been framed
against the petitioner. It is contended that the petitioner, being
involved in the commission of an offence punishable under Section
27-A of the NDPS Act, cannot be enlarged on bail in view of the
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embargo placed by Section 37 of the NDPS Act. The respondent has
further apprehended that the release of the petitioner may send a
wrong signal to society and shall encourage like-minded persons,
with the petitioner-accused being tempted to repeat the commission
of the crime.
3. I have heard learned counsel for the parties, who reiterated their
respective stands already taken in the bail petition and the memo of
objections. I have perused the order dated 19.02.2026 passed by the
learned trial Court while declining bail to the petitioner. The trial
Court record has also been perused.
4. Keeping in view the perusal of the instant successive bail
application, the memo of objections, the trial Court record, and the
consideration of the rival arguments advanced at the Bar on both
sides, this Court, in the facts and circumstances of the case, is of the
opinion that it would be in the ends of justice in case the petitioner-
accused, namely Imran Ali S/o Shamash Din, R/o Dadwara, Tehsil
Billawar, District Kathua, is admitted to bail in case FIR No.
144/2024 dated 27.10.2024 under Sections 8/21,22,25,27-A,s29 of
the NDPS Act, registered at Police Station Billawar, District Kathua,
subject to some reasonable terms and conditions.
5. Admittedly, the provisions of Section 37 of the NDPS Act impose a
bar on the grant of bail to an accused involved in the commission of
offences punishable under Sections 19, 24 or 27-A of the Act, as also
in offences involving commercial quantity, unless the Public
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Prosecutor has been given an opportunity to oppose the application
for such release and, 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. Undoubtedly, the
aforesaid limitations under Section 37 of the Act are in addition to
the limitations already laid down under the Code of Criminal
Procedure/BNSS or any other law for the time being in force
governing the grant of bail. The quantity of heroin alleged to have
been recovered from the petitioner-accused as well as from the co-
accused is intermediate and much below the commercial quantity
fixed at 250 grams for the contraband in question. So far as the
involvement of the petitioner under Section 27-A of the NDPS Act is
concerned, this Court, in the facts and circumstances of the case,
having regard to the allegations against the petitioner-accused, is not
of the opinion that there appear reasonable grounds for believing that
he is involved in the said offence.
6. Apart from the statutory bar, if any, two paramount considerations
viz. likelihood of accused fleeing from justice and tampering with
the prosecution evidence relate to the ensuring of a fair trial of the
case in a court of law. It is essential that due and proper appreciation
and weightage should be bestowed on these factors apart from
others. The grant of bail or the denial of the same falls within the
purview of the judicial discretion meant to be exercised on sound
legal principles upon the logical interpretation and application of the
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same in the given facts and circumstances of the case. The necessary
arrests subject to the law of bails as provided under the Code, BNSS
and the provisions of different special Legislations are permissible
under the Constitution of our Country by way of a reasonable
exception to the fundamental right to liberty guaranteed under
Article 21 of the Constitution and the mandate of the provisions of
Article 22 of the Constitution is meant to be followed upon making
any such necessary arrests.
7. In State of Rajasthan Jaipur Vs. Balchand AIR 1977 S.C. 2447,
the Hon’ble Apex Court has held, “basic rule may perhaps be tersely
put as bail not jail, except where there are circumstances of fleeing
from justice or thwarting the course of justice or creating other
troubles in the shape of repeating offences or intimidating the
witnesses and the like, by the petitioner who seeks enlargement on
bail from the court.
8. No single rule or a golden litmus test is applicable for consideration
of a bail application and instead some material principles/guidelines
are needed to be kept in mind by the Courts and the Magistrates for
consideration of a bail application especially including:
i. Investigation being hampered or The judicial discretion must be
exercised with the utmost care and circumspection;
ii. That the Court must duly consider the nature and the
circumstances of the case;
iii. Reasonable apprehension of the witnesses being tampered;
iv. Investigation being hampered or
v. The judicial process being impeded or subverted.
vi. The liberty of an individual must be balanced against the larger
interests of the society and the State.
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vii. The court must weigh in the judicial scales, pros and cons
varying from case to case.
viii. Grant of bail quo an offence punishable with death or
imprisonment for life is an exception and not the rule;
ix. The court at this stage is not conducting a preliminary trial but
only seeking whether there is a case to go for trial;
x. The nature of the charge is the vital factor, the nature of
evidence is also pertinent, the punishment to which the party
may be liable also bears upon the matter and the likelihood of
the applicant interfering with the witnesses or otherwise
polluting the course or justice, has also a bearing on the matter.
xi. The facts and circumstances of the case play a predominant role.
9. The Hon’ble Apex Court in Gur Bakash Singh Sibbia Vs. State of
Punjab AIR 1980 S.C. 1632, referred to the following extract from
the American Jurisprudence having bearing on the subject of bail.
“where the grant of bail lies within discretion of the court,
granting or denial is regulated to a large extent, by the facts
and circumstances of each particular case. Since the object of
detention order/imprisonment of the accused is to secure his
appearance and submission to jurisdiction and the judgment of
the court, the preliminary enquiry is whether a recognizance
or bond would yield that end. It is thus clear that the question
whether to grant bail or not, depends for its answer upon a
Variety of circumstances, the cumulative effect of which must
enter into the judicial verdict. Any one single circumstance
cannot be treated as of universal validity for justifying the
grant or refusal of bail.”
10.It has been laid down by the Hon’ble Supreme Court in Sanjay
Chandra vs. Central Bureau of Investigation AIR 2012 SC 830 at
Para 14 of its Judgment as under:-
14) “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
preventive. Deprivation of liberty must be considered a
punishment, unless it can be required to ensure that an accused
person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment
beings after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty. From the7 | Page Bail App 43/2026
earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship.
From time to time, necessity demands that some un-convicted
persons should be held in custody pending trial to secure their
attendance at the trial but in such cases, necessity is the
operative test. In this country, it would be quite contrary to the
concept of personal liberty enshrined in the Constitution that
any person should be punished in respect of any matter, upon
which, he has not been convicted or that in any circumstances,
he should be deprived of his liberty upon only the belief that he
will tamper with the witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from the question of
prevention being the object of a refusal of bail, one must not
lose sight of the fact that any imprisonment before conviction
has a substantial punitive content and it would be improper for
any court to refuse bail as a mark of disapproval of former
conduct whether the accused has been convicted for it or not
or to refuse bail to an un-convicted person for the purpose of
giving him a taste of imprisonment as a lesson.”
11.This Court in its opinion is fully fortified with the authoritative law
laid down by the Hon’ble Apex Court cited as Sanjay Chandra Vs.
Central Bureau of Investigation, (2012) 1 SCC 40 in which the
bail was granted to the appellant who was involved in economic
offences. It is profitable to reproduce the relevant paras 24 and 25 of
the judgment for ready reference:-
“24. In the instant case, as we have already noticed that the
“pointing finger of accusation” against the appellants is “the
seriousness of the charge”. The offences alleged are economic
offences which have resulted in loss to the State exchequer.
Though, they contend that there is possibility of the appellants
tampering with the witnesses, they have not placed any material
in support of the allegation. In our view, seriousness of the
charge is, no doubt, one of the relevant considerations while
considering bail applications but that is not the only test or the
factor: the other factor that also requires to be taken note of is
the punishment that could be imposed after trial and conviction,
both under the Indian Penal Code and Prevention of Corruption
Act. Otherwise, if the former is the only test, we would not be
balancing the constitutional rights but rather “recalibrating of
the scales of justice.”
“25. The provisions of Cr.P.C . confer discretionary jurisdiction
on criminal courts to grant bail to accused pending trial or in8 | Page Bail App 43/2026
appeal against convictions, since the jurisdiction is
discretionary, it has to be exercised with great care and caution
by balancing the valuable right of liberty of an individual and
the interest of the society in general. In our view, the reasoning
adopted by the learned District Judge, which is affirmed by the
High Court, in our opinion, is a denial of the whole basis of our
system of law and normal rule of bail system. It transcends
respect for the requirement that a man shall be considered
innocent until he is found guilty. If such power is recognized,
then it may lead to chaotic situation and would jeopardize the
personal liberty of an individual.”
12.In “Prahlad Singh Bhati v. NCT, Delhi“, (2001) 4 SCC 280, the
Hon’ble Apex Court has laid down the special factors for taking into
consideration while exercising the bail jurisdiction and the relevant
para 8 of the said judgment is reproduced as hereunder for ready
reference:-
“8. The jurisdiction to grant bail has to be exercised on the basis
of well-settled principles having regard to the circumstances of
each case and not in an arbitrary manner. While granting the
bail, the court has to keep in mind the nature of accusations, the
nature of the evidence in support thereof, the severity of the
punishment which conviction will entail, the character,
behaviour, means and standing of the accused, circumstances
which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with, the larger
interests of the public or State and similar other considerations.
It has also to be kept in mind that for the purposes of granting
the bail the legislature has used the words “reasonable grounds
for believing” instead of “the evidence” which means the court
dealing with the grant of bail can only satisfy it (sic itself) as to
whether there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to have
the evidence establishing the guilt of the accused beyond
reasonable doubt.”
13.The observations of the Hon’ble Apex Court laid down in “State of
U.P. v. Amarmani Tripathi”, (2005) 8 SCC 21 at para 18 of the
judgment also deserve a needful mention:
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“18. It is well settled that the matters to be considered in an
application for bail are (i) whether there is any prima facie or
reasonable ground to believe that the accused had committed
the offence; (ii) nature and gravity of the charge; (iii) severity of
the punishment in the event of conviction; (iv) danger of the
accused absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being tampered with;
and (viii) danger, of course, of justice being thwarted by grant
of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan
Singh v. State (Delhi Admn.)]. While a vague allegation that the
accused may tamper with the evidence or witnesses may not be a
ground to refuse bail, if the accused is of such character that his
mere presence at large would intimidate the witnesses or if there
is material to show that he will use his liberty to subvert justice
or tamper with the evidence, then bail will be refused.”
14.The Hon’ble Apex Court in Sanjay Chandra‘s case cited supra has
inter alia held at para 40 of the judgment, “the grant or refusal to
grant bail lies within the discretion of the Court. The grant or denial
is regulated, to a large extent, by the facts and circumstances of each
particular case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the
accused. The primary purposes of bail in a criminal case are to
relieve the accused of imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and at the same time, to
keep the accused constructively in the custody of the Court, whether
before or after conviction, to assure that he will submit to the
jurisdiction of the Court and be in attendance thereon, whenever his
presence is required.”
15.The Hon’ble Apex Court in its judgments cited as Siddharam
Satlingappa Mhetre Vs. State of Maharastra decided on
02/12/2010, AIR 2011 SC312 and Sushila Aggarwal and others
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vs. State (NCT of Delhi) and Another decided on January 29,
2020 by a larger bench 2020 SC online 98 , has interpreted law on
the subject of anticipatory bail with a very wide outlook and while
interpreting the concept of liberty guaranteed under Article 21 of the
Constitution of our country in a flexible and broader sense. It has
been inter alia observed by the Hon’ble Apex Court in the aforesaid
judgments that the exact role of the accused must be properly
comprehended before arrest is made. “The inner urge for freedom is
a natural phenomenon of every human being. Respect for life and
property is not merely a norm or a policy of the state but an essential
requirement of any civilized society. Just as the liberty is precious to
an individual, so is the society’s interest in maintenance of peace,
law and order.”
16.The co-accused, namely Mohd. Saleem, stands already released on
bail. The petitioner-accused is reported to be under detention
continuously since his arrest in the case on 27.10.2024. There is
nothing on record suggestive of the fact that the petitioner-accused, if
admitted to bail, will misuse the concession of bail by repeating the
commission of the crime or by absconding during the trial.
17.For the foregoing reasons, the present successive bail application is
allowed and accordingly, the petitioner is admitted to bail, subject to
his furnishing surety and personal bonds each in the amount of Rs.
50,000/- (Rupees Fifty Thousand only), to the satisfaction of the
learned Registrar Judicial, Jammu Wing of this Court, and the
11 | P a g e Bail App 43/2026
Superintendent, District Jail, Kathua, respectively, for assuring the
compliance of the following conditions.
i. The petitioner shall remain punctual before the learned
trial Court on each and every date of hearing.
ii. The petitioner shall not leave the limits of India without
the prior permission of the learned trial Court.
iii. The petitioner shall not repeat the commission of any
offence.
iv. In case the requisite surety bond is furnished to the
satisfaction of the learned Registrar Judicial, Jammu,
Registry shall issue a formal release order directing the
Superintendent of District Jail, Kathua, to release the
petitioner/accused from his custody in the FIR in question.
18. Nothing in this order shall be construed as any prejudging of or
interference with the merits of the main case.
19. The bail petition is, accordingly, disposed of.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
17.07.2026
Mubashir Whether the order is speaking: Yes
Whether the order is reportable: Yes/No
12 | P a g e Bail App 43/2026
