Ashraf Mohd Th Nasreen Akhter v. Ut of J and K Th S.H.O. Police Station Katra

ORDER

Bail App No. 134/2025

¶01Petitioner, through the medium of this petition under Section 183 of BNSS, 2023, seeks grant of bail in a case registered at Police Station Katra vide FIR No. 07/2022, for commission of offences punishable under Sections 8, 20, 25 and 27-A of NDPS Act.

¶02Brief facts of the case as pleaded are that the applicant Mohd Ashraf was implicated in the case because an amount of Rs. 5,77,000/- was transferred by one Bashir Ahmed to the bank account of applicant bearing No.0374040100004842, as the petitioner allegedly acted as conduit of Bashir Ahmed by arranging and selling contraband (Charas) to him, who in turn, used to sell and distribute the contraband among locals of the area. Thus, allegation of Serial No.

applicant being indulged in illegal sale and purchase of contraband was substantiated through frequent calls between the applicant and said Bashir Ahmed as also bank account statement of the applicant.

¶03It is the case of the applicant that the respondent has wrongly implicated him in FIR No. 07/2022 and the applicant is in custody since his arrest; that no recovery of contraband was made from the applicant and no direct evidence has been adduced by the prosecution against him, not even a single prosecution witness has made any incriminating statement against the applicant; that the alleged bank transaction between the applicant and co-accused are matter of evidence that are to be proved during the course of trial; that the bail application moved before the court of Principal Sessions Judge, Reasi was dismissed on

04.04.2025, however, the co-accused Bashir Ahmed, who is facing trial with the applicant in FIR No. 10/2022 under Sections 8/20/21/25/27-A NDPS Act was granted bail by the same trial court on 04.12.2024, despite allegations of financing drug trade and cash deposits to the applicant's bank account; that rejection of bail to the applicant in FIR No. 07/2022 and grant of bail to the co-accused of the applicant in FIR No. 10/2022, reflects conflicting view by the trial court on similar set of circumstances. Lastly, it is prayed that the bail application be allowed and applicant be granted bail on the conditions which may be imposed by this court.

¶04Objections stand filed on behalf of the respondent. A perusal whereof would show that one Bashir Ahmed made frequent calls to the applicant whose bank statement also shows multiple transactions of Rs.5.7 lakh into the account

of petitioner; that the petitioner was found involved in criminal conspiracy and was the courier of the accused Bashir Ahmed and instrumental in selling banned narcotics to adjoining areas of Katra of District Reasi; that the petitioner is a habitual drug addict and smuggler as he was booked in an NDPS Act on earlier occasion; that the petitioner was in judicial custody in connection with case FIR No. 10/2022 U/S 8/20/21/25 NDPS Act of P/S Katra, however, his custody was granted in the instant case by Court of Sessions, Reasi on 09.02.2022 and arrested on same day and after completing all formalities the petitioner was produced before court of Sessions on 22.02.2022 and his custody was changed to FIR No.10/2022 PS Katra in which he was already arrested; that records from the agencies concerned reveal that Bashir Ahmed, co-accused deposited nearly Rs.20,00,000/- in the petitioner's bank account, who was courier to Bashir Ahmed and used to get consignment of banned narcotics from Kashmir for him; that perusal of bank statement, certified copy of CDR, cash deposit slips and other circumstantial evidence, offence U/S 29 of NDPS Act was established against the petitioner for becoming a party in criminal conspiracy as he was the drug peddler of co-accused Bashir Ahmed; that the Trial Court recorded a categoric finding that the petitioner Mohd Ahsraf is also in custody in another case registered vide FIR No. 10/2022, P/S Katra U/Ss 8/20/21/22/25/27-A NDPS Act in which commercial quantity of contraband has been recovered from the applicant Mohd Ahsraf. It is lastly prayed that the bail application of the petitioner be rejected as the petitioner was involved in a case of NDPS, which has serious ramifications, which is being used in the present times to sustain the

ecosystem of the narco-terrorism in the region, besides, spoiling the young generations by making them addicts.

¶05Heard and considered.

¶06Learned counsel for the petitioner argued that the trial court has rejected the bail application of the petitioner whereas under the similar circumstances, the bail of another accused who has been shown as co-accused in this case was granted in another case registered vide FIR No. 10/2022, wherein the contraband had been recovered from the applicant herein and co-accused was granted bail for having abetted the petitioner herein, whereas in the instant case, it was the co-accused Bashir Ahmad from whom the alleged contraband had been recovered and the petitioner had been implicated in the case simply for the reason that there had been bank transactions between the aforesaid Bashir Ahmad and the petitioner herein. The court below has, thus, taken two different considerations while granting bail to Bashir Ahmad in his case, whereas the petitioner's bail application was rejected in this case and prayed that the petitioner, even if, alleged contraband was of commercial nature was entitled to be admitted to bail on the basis of the parity and prayed that the petitioner be admitted to bail.

¶07Learned counsel for the respondent, ex adverso, vehemently argued that the petitioner is not only involved in an offence under NDPS Act involving commercial quantity of the seized contraband but he has been found involved in the illicit traffic of the narcotics as is revealed from his bank account, wherein money has been transferred from one Bashir Ahmad, who used to smuggle the

contrabands from Kashmir and whose bank transactions also revealed that lakhs of rupees have been transferred from the suppliers of Kashmir to the accounts of the aforesaid Bashir Ahmad with whom the petitioner herein had also transactions as revealed from the bank account of the petitioner herein. He stated that the amount of Rs.5.77 lakhs had been transferred to the account of the petitioner by co-accused Bashir Ahmad. Therefore, it cannot be said that the petitioner is by no stretch of imagination an innocent to be granted bail, particularly, when statutory bar of Section 37 of the NDPS Act is applicable to the case. It was finally prayed that the application be rejected.

¶08Admittedly, the alleged recovery of Psychotropic Substance falls within the commercial quantity, thus, rigors of Section 37 of NDPS Act, comes into play. Therefore, unless the Court records the satisfaction on the twin requirements as envisaged under Section 37 of the NDPS Act, it is not legally permissible to grant concession of bail. Hon'ble Supreme Court in a recent judgment passed in Union of India Vs. Vigin K. Varghese; 2025 SCC OnLine SC 2440, while setting aside the order of the High Court granting bail without properly considering the rigors of Section 37 held as follows: "17. The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii) which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution's assertions of operative control and

antecedent involvement, risks trenching upon appreciation of evidence which would be in the domain of trial court at first instance. 18 to 21. xxxxxxx

¶22…………The matters are remitted to the High Court of Judicature at Bombay for fresh consideration of the respondent's prayer for bail. The High Court shall, after affording an opportunity of hearing to both the sides and upon adverting to the statutory requirements of Section 37 and to the relevant material on record, pass a reasoned order keeping in mind the observations made hereinabove within four weeks from the date of receipt of this order………………………………….."

¶09In view of applicability of the statutory provisions of Section 37 of the NDPS Act which bars grant of bail unless the two conditions are satisfied, firstly, that the public prosecutor is to be heard before grant of such bail and secondly that there are reasons to record satisfaction that the petitioner was not involved in the commission of the offences. Though the public prosecutor has been heard by the court below and also the Government Advocate by this court, however, there is no material placed on record so as to satisfy this court with regard to meet the second condition that the petitioner has not committed the offence. The evidence brought on record by the Investigating Agency is sufficient to state that the petitioner was prima facie involved in the commission of the offences of which he is charged. The plea raised by the counsel with regard to the basis of parity for grant of bail in the opinion of this court is also not tenable for the simple reason that such parity in two different cases cannot be raised and is available only in the same case.

¶10For the aforesaid reasons, this court is of the considered opinion that the petitioner is not entitled to be enlarged on bail as he is alleged to have committed the illicit traffic of the contraband, that too, with huge recovery of the Cannabis (Charas) i.e. 6.4 kg which falls within commercial quantity. Having regard to the nature and gravity of the offences of which petitioner is charged/accused and their impact on the society at large, the application is found to be misconceived and is liable to be rejected.

¶11Viewed thus, the application for grant of bail moved by the petitioner herein is, thus, dismissed.

(M A CHOWDHARY)

JUDGE

Jammu

03.12.2025 Raj Kumar

Whether the order is reportable? :Yes.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Bail App No. 134/2025 Reserved on: 28.11.2025 Pronounced on: 03.12 .2025 Uploaded on: 03.12 .2025 Whether the operative part or full judgment is pronounced-Full Judgment Ashraf Mohd. …..Appellant(s)/Petitioner(s) Through: Mr. Mehtab Gulzar, Advocate. Vs U.T of J&K & Anr. .…. Respondent(s) Through: Mr. Sumeet Bhatia, GA CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE