Jammu & Kashmir High Court
Sr. No. 156 vs Union Of India Through on 29 April, 2026
Sr. No. 156
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 361/2025
Date of pronouncement: 29.04.2026
Date of uploading: 29.04.2026
Salim Khan, Aged 45 years ..... Petitioner(s)/Appellant(s)
S/o Shahzad Khan,
R/o T-175, Gali No. 4,
Gautampuri, Jafrabad, Shadra,
P O Salimpur, District North East
Delhi, New Delhi.
A/p lodged at District Jail Kathua.
Through his son
Sahid, Aged 22 years,
S/o Salim Khan,
R/o T-175, Gali No. 4,
Gautampuri, Jafrabad, Shadra
P O Salimpur,
District North East Delhi,
New Delhi.
q
Through: Mr. Supreet Singh Johal, Advocate.
vs
01. Union of India through ..... Respondent(s)
Sub-Inspector, Narcotics Control Bureau
(NCB), Jammu Zonal Unit,
Office at H. No. 322,
Sector-C, Sainik Colony,
Jammu.
02.Superintendent, District Jail,
Kathua.
Through: Mr. Vishal Sharma, DSGI.
Coram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
ORDER
29.04.2026
01. Petitioner has approached this Court for his enlargement on bail, after
his plea for a similar relief, vide order dated 14.11.2025, came to be
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declined by learned Additional Sessions Judge, Kathua [“the trial
Court”].
02. Before a closer look at the grounds urged in the petition, it shall be
appropriate to have an overview of background facts of the case.
03. Factual matrix of the prosecution case, shorn of verbosity, is that a
source information was received by Sh. Shubham Yadav, Sub-
Inspector, NCB, Jammu that on 31.08.2024 at about 0600 hours, four
parcels booked in the name of Farooq Ahmed Labroo, containing
Codeine based cough syrup and Spasmo Proxyvon Plus Capsules
were being transported in a truck bearing Registration No. JK13E
9954 from Delhi to Srinagar and vehicle was about to pass State Tax
Enforcement Physical Inspection Hall No. 2 Lakhanpur, Kathua, J&K
between 1600 hours to 1800 hours. On the receipt of this information
the NCB team rushed to the spot and intercepted the truck.
04. As per the prosecution case, driver of the truck disclosed his name as
Sh. Nazir Ahmad and Khalashi (the conductor) as Umar Gani Laway.
Both of them were requested by NCB to be independent witnesses, to
which they agreed. The team asked for builty of the loaded material.
05. Further case of the prosecution is that in Builty No. 20512, name of
the consigner was written as Verma Electricals and consignee Farooq
Ahmed Labroo and “Four electronic goods” was mentioned in the
builty. The team recovered all the four parcels from the truck.
06. According to the prosecution, when parcels were opened one by one,
two Jhoomar lights were recovered from the first parcel, green
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coloured card box on which “Battery cell” was mentioned was
recovered from the second parcel, Sarvo cards were recovered from
the third parcel and three black polythenes, 8 boxes in each polythene
and sixteen more boxes (total 40 boxes) of Spasmo Proxyvon Plus
capsules (containing Tramadol) and 25 bottles of Codeine based
cough syrup, wrapped blue and yellow colour polythene came to be
recovered from the fourth parcel. The NCB team finalised requisite
legal formalities including the seizure and sealing of alleged
contraband on the spot.
07. NCB team of Jammu along with NCB, Srinagar reached Star Goods
Carrier, Srinagar on 02.09.2024, with whom parcels were booked for
transportation. Sh. Irshad Sadiq Runga, who was present in the
premises of the company called Asif Ishtiyaq, receiver of the parcel.
He told him on call that his parcels had reached to their Srinagar
godown. He was called to come and collect the parcels. Said Asif
Ishtiyaq reached Star Goods Carrier, Srinagar at 1500 hours on
02.09.2024 to collect the parcels. After the payment, Irshad Sadiq
Runga handed over the receipt and gate pass to Asif Istiyaq to collect
his parcels from the godown and when Asif Ishtiyaq was going
towards the godown to collect his parcels, he was intercepted by NCB
team and he accepted that said parcels belong to him. On this, Asif
Ishtiyaq came to be detained by NCB team and the truck bearing
Registration No. JK01S 6045, which was used by accused Asif
Ishtiyaq for smuggling of drugs also came to be seized.
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08. Pertinently, accused Asif Ishtiyaq during his statement under Section
67 NDPS Act on 03.09.2024, according to the prosecution revealed
that he had ordered the contraband in question from Salim Khan, the
petitioner herein, and had paid around Rs. 65000/- to him through his
ATM card, that was given to him when he had visited Delhi. The
accused Asif Ishtiyaq is also alleged to have disclosed that he along
with his friend Zissan Hilal Zargar would sell these drugs in double
rates in Srinagar.
09. On this revelation, a notice under Section 67 NDPS Act came to be
issued to the petitioner. Statement of the petitioner came to be
recorded on 27.10.2024 under Section 67 NDPS Act in which,
according to the investigating agency, he disclosed that he had
parcelled the seized contraband to Asif Ishtiyaq on 27.08.2024 faking
the parcels as electronic items for HA electrics.
10. The investigating agency also recorded statement of Irshad Sadiq
Runga under Section 183 BNSS, in which he is alleged to have stated
that seized contraband was booked by the petitioner and sent to
accused Asif Ishtiyaq on 27.08.2024 and on being asked about bill
and ID of receiver, petitioner replied that he would provide the said
documents at the time of delivery. The investigating agency also
recovered mobile phones of both Asif Ishtiyaq and petitioner and
statements of accounts of accused persons from the concerned banks
were also obtained by the investigating agency. Aside, the
investigating agency also obtained CDRs and CAFs with certificate of
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63 of BSA (65B of IEA) from the concerned service providers
through Nodal Officer of J&K Circle.
11. The investigation eventually culminated in the presentation of charge
sheet in the trial Court.
12. The petitioner and co-accused came to be charged by the trial Court,
whereby they pleaded innocence prompting the trial Court to call for
the prosecution evidence and so far one prosecution witness is stated
to have been examined by the trial Court.
13. The petitioner approached the trial Court for emancipation, however,
his bail plea came to be rejected primarily on the grounds of gravity
of the charge and bar of Section 37 NDPS Act.
14. The petitioner has taken an exception to the verdict of learned trial
Court predominantly on the grounds that contraband was not
recovered from his conscious possession, whereas driver and
conductor of the truck, from which the contraband came to be
recovered have been cited as prosecution witnesses. It is also
contention of the petitioner that he is neither the consigner nor the
consignee of the contraband and therefore there is no prima facie
evidence suggesting his involvement in the crime.
15. The plea has been opposed on the other side by the respondent inter
alia on the grounds of seriousness of the charge and severity of the
punishment attached to it. It is also contention of the respondent that
since a commercial quantity of contraband came to be recovered in
the present case and petitioner has been charged inter alia for offence
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under Section 29 NDPS Act, Section 37 NDPS is attracted and he is
not entitled to the liberty.
16. Having heard learned counsels for the parties, I have gone through the
record.
17. While learned counsel for the petitioner has reiterated the grounds
urged in the memo of petition, Mr. Vishal Sharma, learned DSGI has
opposed the present application on the ground of rigor of Section 37
NDPS Act.
18. The courts while considering a bail plea, in cases of recovery of
commercial quantity of contrabands in NDPS cases, are mandatorily
required to return a finding, in the context of Section 37 of NDPS Act
that accused is not guilty of any such offence.
19. Undisputed facts of the case are that petitioner came to be implicated
in the present case, solely on the basis of statement made by co-
accused Asif Ishtiyaq, while he was in custody, that he had ordered
the consignment from the petitioner and paid him Rs. 65000/- from
his ATM card.
20. A three Judge Bench of Hon’ble Supreme Court, in Tofan Singh Vs.
State of Tamil Nadu; (2021) 4 SCC 1, has held that since the
officers vested with the power under Section 53 of NDPS Act are
“Police Officers”, any confessional statement recorded by them under
Section 67 NDPS Act will remain inadmissible under Section 25 of
the Evidence Act and cannot be taken into consideration to convict an
accused under the Act.
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Relevant excerpt of the judgement, reads as below:
“158.1. That the officers who are invested with powers under Section 53 of the
NDPS Act are “police officers” within the meaning of Section 25 of the
Evidence Act, as a result of which any confessional statement made to them
would be barred under the provision of Section 25 of the Evidence Act, and
cannot be taken into account in order to convict an accused under the NDPS
Act.
158.2 That a statement recorded under Section 67 of the NDPS Act cannot be
used as a confessional statement in the trial of an offence under the NDPS
Act.”
21. Relying upon the majority judgment in Tofan Singh (supra) Hon’ble
Supreme Court in State by (NCB) Bengaluru vs. Pallulabid Ahmad
Arimutta and Anr.; 2022 (1) RCR (Criminal) 762 though ruled that
CDR details of an accused is an aspect to be examined during the
trial, but refused to cancel bail of the accused, granted by the high
Court on the ground that contraband was not recovered from their
conscious possession.
Relevant excerpt of the judgment captured in paras 9 and 10 for the
facility of reference has been extracted below:
“9. Having gone through the records alongwith the tabulated statement of
the respondents submitted on behalf of the petitioner-NCB and on
carefully perusing the impugned orders passed in each case, it emerges
that except for the voluntary statements of A-1 and A-2 in the first case
and that of the respondents themselves recorded under Section 67 of the
NDPS Act, it appears, prima facie, that no substantial material was
available with the prosecution at the time of arrest to connect the
respondents with the allegations levelled against them of indulging in
drug trafficking. It has not been denied by the prosecution that except for
the respondent in SLP (Crl.) No. 1569/2021, none of the other
respondents were found to be in possession of commercial quantities of
psychotropic substances, as contemplated under the NDPS Act.
10. It has been held in clear terms in Tofan Singh Vs. State
of Tamil Nadu, (2021) 4 SCC 1, that a confessional statement recorded
under Section 67 of the NDPS Act will remain inadmissible in the trial of
an offence under the NDPS Act. In the teeth of the aforesaid decision,
the arrests made by the petitioner-NCB, on the basis of theBail App No. 361/2025 Page No. 7
2026:JKLHC-JMU:1234confession/voluntary statements of the respondents or the co-accused
under Section 67 of the NDPS Act, cannot form the basis for overturning
the impugned orders releasing them on bail. The CDR details of some of
the accused or the allegations of tampering of evidence on the part of
one of the respondents is an aspect that will be examined at the stage of
trial. For the aforesaid reason, this Court is not inclined to interfere in the
orders dated 16th September, 20T9, 14th January, 2020, 16th January,
2020, 19th December, 2019 and 20th January, 2020 passed in SLP
(Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.)
No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No.
2080/2021 respectively. The impugned orders are, accordingly, upheld
and the Special Leave Petitions filed by the petitioner-NCB seeking
cancellation of bail granted to the respective respondents, are dismissed
as meritless.”
22. It is manifest from the afore-quoted enunciation of law by Hon’ble
Supreme Court that an accused can be granted the concession of
regular bail when he is sought to be implicated solely on the basis of
the disclosure statement of co-accused, recorded in custody, and there
is no other corroborative evidence or substantial material available
with the sprosecution to connect him with the allegations of drug
peddling.
23. In so far as CDRs/CAFs and tower locations are concerned, in the
absence of transcript of conversations exchanged between accused
persons, mere call details or call data records or mere contact of the
petitioner with co-accused cannot considered to be a corroborative
material to connect him with the commission of the crime. It may
reveal that in or around the time of the occurrence petitioner was in
contact with the co-accused, receiver of the alleged contraband,
however, since there is no transcript of the conversations between
accused persons, call details per se would not be sufficient to
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corroborate that they had common criminal intention of drug
peddling.
24. The positive case of the prosecution is that NCB received a source
information that four parcels booked in the name of Farooq Ahmed
Labroo containing the contraband in question were being transported
from Delhi to Srinagar. The vehicle came to be intercepted at
Lakhanpur. As per the Builty No. 20512 presented by the driver of
the truck, consigner of the truck was Verma Electricals and consignee
was Farooq Ahmed Labroo. The consignment was booked with the
Star Goods Carrier, Srinagar and Asif Ishtiyaq received the parcel
from godown of the said company. It is manifest from the sequence of
these events, part and parcel of the charge sheet that petitioner is
neither the consigner nor the consignee nor receiver of the parcel
containing the alleged contraband. In short, the contraband has not
been recovered from the conscious possession of the petitioner and he
came to be implicated in the case solely on the basis of statement
made by the co-accused Asif Ishtiyaq under Section 67 NDPS Act,
while he was in custody, which has per the legal precedents discussed
in the preceding paras is inadmissible in evidence. In the
circumstances of the case, the embargo contained in Section 37 NDPS
Act cannot be construed to have the same efficacy.
25. For the foregoing reasons, petition is allowed and petitioner is
directed to be released on bail on his furnishing a solvent surety bond
to the tune of Rs. one lac, to the satisfaction of learned trial Court and
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a bond of personal recognizance to the satisfaction of Superintendent
of the concerned jail, subject, however to the 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 he is
accused of; and
(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 trial
Court.
26. It is however made clear that nothing observed in this order shall be
construed as an expression of opinion on the merits of the case.
27. Disposed of.
(Rajesh Sekhri)
Judge
Jammu
29.04.2026
Sushant
Whether the order is speaking? Yes
Whether the order is reportable? Yes
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