Nazim Ahmad Sheikh Vs Union Territory through Police Station Karnah (Home)

1) The petitioner has invoked jurisdiction of this Court under Section 483 of BNSS for grant of bail in a case arising out of FIR No.61/2021 for offences under Sections 8/21/29 of NDPS Act registered with Police Station, Karnah.

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2) As per case of the prosecution, on 07.06.2021, SPO Shafat Ahmad approached the Police Station with a written docket from Incharge Police Post, Taad, alleging therein that one Naseer Ahmad Sheikh (co-accused) is in possession of contraband substance (brown sugar) which he was planning to smuggle to local youth in Kupwara. On the basis of this docket, FIR No.61/2021 for offences under Section 8/21/29 of NDPS Act came to be registered and investigation was set into motion.

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3) During investigation, the police party along with Executive Magistrate, 1^st Class, Tangdar, proceeded to the spot and accused Naseer

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Ahmad Sheikh was apprehended. He made a disclosure statement before the police stating therein that he had concealed two packets of brown sugar in a wall of boulders and that the said two packets were procured by him from Nazim Ahmad Sheikh, the petitioner herein. On the basis of the disclosure made by co-accused Naseer Ahmad Sheikh, the two packets of brown sugar were recovered and the same were found to weigh 2 kgs. The samples of the recovered contraband substance were sealed in presence of the Executive Magistrate, 1^st Class, Tangdar, and the same were sent to FSL for chemical examination. After recording statements of the witnesses under Section 161 and 164 of the Cr. P. C, the offences under Section 8/21/29 of NDPS Act were found established against the accused including the petitioner herein. While co-accused Naseer Ahmad Sheikh was arrested by the police, the petitioner herein, despite best efforts, could not be arrested. Accordingly, the challan was presented before the trial court in the absence of the petitioner and a prayer was made before the learned trial court for declaring him as an absconder.

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4) It seems that that on 20.05.2022, the petitioner came to be arrested and the learned trial court vide order 23.08.2023, framed charges for offences under Section 8/21 of NDPS against the petitioner. Co-accused Naseer Ahmad Sheikh was also charged for the same offences vide the same order. It also appears that the bail application of the petitioner was dismissed by the learned trial court in terms of order dated 11.12.2024.

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5) The petitioner has sought bail in the aforesaid case on the grounds that he has been falsely implicated in the case only on the basis of the confessional statement made by co- accused Naseer Ahmad Sheikh and

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that there is no other evidence on record against him. It is being urged that there are no reasonable grounds for believing that the petitioner has committed the offence alleged against him. It has been further contended that nothing has been recovered from the possession of the petitioner and there is no material connecting the petitioner with the alleged crime. It has been contended that most of the material witnesses have been examined by the prosecution. The petitioner has been in custody for the last about three years and there is no likelihood of completion of trial in near future, therefore, he deserves the concession of bail.

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6) The respondent, in its reply, besides narrating the facts alleged in the charge sheet, has contended that the petitioner is involved in a heinous offence, as such, he is not entitled to concession of bail. It has further been submitted that fact that the petitioner could not be arrested during investigation of the case and a prayer had to be made before the learned trial court for declaring him as absconder, shows that in case the petitioner is granted bail, there is every chance that he may jump the concession of bail.

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7) I have heard learned counsel for the parties and perused record of the case including the trial court record.

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8) In the instant case, commercial quantity of contraband has been recovered from the possession of the co-accused. 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

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provided under the provisions contained in Section 37 of the NDPS Act, which reads as under:

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“37.Offences to be cognizable and non-bailable.—

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(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

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(a) every offence punishable under this Act shall be cognizable;

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(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—

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(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.

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(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.”

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9) From a perusal of the aforesaid provision, it is clear that in the cases involving offences relating to 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 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.

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10) The expression “reasonable grounds” has been discussed by the Supreme Court in the case of Collector of Customs, New Delhi vs.

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Ahmadalieva Nodira, (2004) 3 SCC 549, in the following manner:

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“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.”

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11) Again, in State of Kerala and others vs. Rajesh and others,

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(2020) 12 SCC 122, the Supreme Court has observed as under:

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“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 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.”

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12) The Supreme Court has recently, while relying upon the aforesaid

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two judgments, in the case of N arcotics Control Bureau vs. Mohit

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Aggarwal, 2022 Live Law (SC) 613, observed as under:

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“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

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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.

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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.”

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13) From the aforesaid analysis of the law on the subject it is clear that

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for the limited purpose of considering the bail application of the petitioner, this Court has to consider the material on record so as to ascertain whether such 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.

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14) In the light of the foregoing analysis of law on the subject, let us now consider the material on record. As per case of the prosecution, on the fateful day, co-accused Naseer Ahmad Sheikh was arrested on the basis of a specific information and upon his arrest, he made a disclosure statement stating therein that he had concealed two packets of heroin, which he had obtained from the petitioner, in a wall of boulders. It is case of the prosecution that on the basis of said disclosure statement, the contraband substance was recovered and seized. Admittedly, nothing has

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been recovered from the possession of the petitioner. His involvement, as it appears from the perusal of the trial court record, is based upon the disclosure statement made by co-accused Naseer Ahmad Sheikh. The question that arises for consideration is as to whether the petitioner can be connected with the alleged crime on the basis of the disclosure statement made by the co-accused before the police officials.

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15) The law on the aforesaid subject is very clear. The confessional statement of a co-accused has been time and again held to be inadmissible in evidence in view of the provisions contained in Section 25 and 26 of the Evidence Act. The only exception to inadmissibility of a statement made by an accused before a police official is Section 27 of the Evidence Act, which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, as relates distinctly to the fact thereby discovered, is admissible in evidence. Thus, a confessional statement made by an accused before the police which relates distinctly to the fact thereby discovered is only admissible in evidence. The Supreme Court has repeatedly held that confessional statement of a co-accused is inadmissible in evidence. In this regard reference can be made to the ratio laid down by the Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu, 2020 SCC Online SC 882. The same position has been reiterated by this Court in the case

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of Rayees Ahmad Dar vs. UT of J&K (Bail App No.05/2022 decided on 21.05.2022).

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16) In the instant case, nothing has been recovered from the possession of petitioner. The recovery of the contraband has been effected on the basis of the disclosure statement made by co-accused Naseer Ahmad Sheikh. His disclosure statement is, therefore, protected under Section 27 of the Evidence Act. However, it is only that part of his statement that relates distinctly to the fact thereby discovered, which is admissible in evidence, meaning thereby that only portion of the disclosure statement made by co-accused Naseer Ahmad Sheikh, which relates to the recovery of contraband substance is admissible in evidence. So far as his statement with regard to involvement of the petitioner in the alleged crime is concerned, the same is not protected by the provisions contained in Section 27 of the Evidence Act. Thus, prima facie, it appears that the petitioner could not have implicated in the case on the basis of the disclosure statement made by co-accused Naseer Ahmad Sheikh.

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17) From the foregoing discussion, there appear to be reasonable grounds for believing that the petitioner/accused is not guilty of the alleged offences. There is nothing on record to show that the petitioner has any criminal antecedents or that in previous past he has been involved in similar offences. Although it has been contended by the respondent that the petitioner had absconded during investigation of the case, yet there is no material on record to show that if the petitioner is enlarged on bail, he would misuse the concession of bail even in future.

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18) Apart from the above, a perusal of the trial court record shows that most of the witnesses have been examined in the case and only five witnesses out of 11 listed witnesses are to be examined. The petitioner has

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been in custody for the last about three years, as such, his further incarceration would not serve any fruitful purpose. On this ground also, the petitioner is entitled to bail.

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19) For the foregoing reasons, the application is allowed and the petitioner is admitted to bail subject to the following conditions:

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(i) That he shall furnish bail bond and personal bond in the amount of Rs.50,000 (rupees fifty thousand) with one surety of the like amount to the satisfaction of the trial court;

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(ii) That he shall appear before the trial court on each and every date of hearing;

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(iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the trial court;

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(iv) That he shall not tamper with the prosecution witnesses/evidence;

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(v) That he shall not indulge in similar activities;

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20) Any observation made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as expression of opinion on the merits of the case.

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21) The bail application shall stand disposed of.

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(SANJAY DHAR)

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JUDGE

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Srinagar, 01.08.2025

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“Bhat Altaf-Secy”

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Whether the Judgment is reportable: Yes/No