Baber Ahmed Malik vs UT of J&K

Shahzad Azeem, J

The  petitioner  is  facing  trial  before  the  Court  of  learned Additional Sessions Judge, Doda [“the trial Court”] and has filed instant petition in terms of Section 483 of Bhartiya Nagrik Suraksha Sanhita (BNSS) seeking bail in FIR No 04/2025 under Section 8/21/22/29 NDPS Act.

Prosecution case in brief is that on January 3, 2025, police party of Police Post, Khellani during naka checking duty, near Police Post, Khellani, intercepted a bus bearing registration No. JK02CN-0087 coming from Jammu towards Bhaderwah. When the bus was stopped, the driver of the vehicle alighted quickly and on sensing the presence of the police, tried to whisk away. This arose suspicion, but, after a short chase, the police party apprehended the driver, who on enquiry disclosed his identity as Bashir Ahmed S/o Shah Mohd. (the petitioner herein). On search, a polythene bag containing heroine weighing 10-12 grams alleged to have been recovered. Accordingly, the petitioner was apprehended and this information on being transmitted to police station, Doda, a formal FIR came to be registered and investigation commenced for the commission of offence under Section 8/21/22 NDPS Act. During the course of investigation, it surfaced that the petitioner was allegedly involved in drug trafficking in and around Doda town with the connivance of Mst. Shakeela Begum @ Taya, a resident of Doda. It has further emerged that the co-accused has been procuring heroin from alleged drug suppliers operating in Bari Brahmana, Samba and Indra Chowk, Jammu, for onward sale to the youth of District Doda and adjoining areas. It has been further unraveled during investigation that cash transaction has also exchanged hands between the accused who are previously involved in similar cases and are facing trial.

Now, the case set up by the petitioner is that the alleged seized quantity of heroin falls in intermediate quantity and, therefore, the rigors of Section 37 of the NDPS Act are not attracted. It is further contended that his pre-trial detention is punitive in nature and not warranted under law; as such, the petitioner deserves to be enlarged on bail.

Further ground urged by the learned counsel for the petitioner is that he is behind the bars for the last 09 months and the trial is at its inception, therefore, further detention amounts to pre-trial punishment which is violative of Article 21 of the Constitution of India.

On the other hand, respondent has filed the objection and resisted the petition mainly on the ground that the petitioner is a habitual offender and is also involved in similar cases, however, despite previously bail granted to the petitioner, he violated the conditions and again indulged in commission of offence under the provisions of NDPS Act, therefore, his bail plea is liable to be rejected. The bail plea of the petitioner is also objected on the ground that the petitioner in connivance with co-accused whose bail application also came to be rejected have been dealing in drug trafficking, therefore, same need to be dealt with iron hands as the previous concession of bail granted to the petitioner has been blatantly misused.

Heard and considered.

Admittedly, the petitioner has been sent up for trial for allegedly trafficking in heroine, and quantity whereof is stated to be of intermediate quantity, therefore, rigors of Section 37 are not applicable. It is equally settled that the accused cannot be kept behind the bars as a punishment.

Before further delving into the matter, it needs to be kept in mind that the trial Court has dismissed the bail application of the petitioner and the co-accused by a common order dated 06.08.2025 mainly on the ground that the petitioner is previously involved in similar cases and further, he concealed this fact, therefore, keeping in view the nature of offence, conduct of the petitioner and overall impact on the society, the trial Court has rejected the bail plea of the petitioner.

On a cursory look to the order of the trial Court, whereby the bail application of the petitioner was dismissed, it appears that there is one FIR already registered against the petitioner under Section 8/20 NDPS Act and as many as 03 FIRs have been registered against the co-accused Mst. Shakeela Begum under different Sections of NDPS Act. Although the Court is not called upon to adjudicate the liberty matter of Mst. Shakeela Begum but just to keep the record straight, it is deemed necessary to place on record the previous conduct of the petitioner and his continuous involvement in the alleged drug trafficking.

At this stage, it is equally noteworthy that although the learned trial Court had heavily come down on the petitioner in concealing the fact of registration of previous FIR, which factor also weighed with it while rejecting the bail plea, but the petitioner again failed to disclose the said fact in the present petition. However, it was only that during the course of arguments, when confronted with a specific query in this regard, learned counsel for the petitioner moved an application seeking permission to place on record the details of the earlier FIR.

Be that as it may, at the outset it needs to be noticed that the alleged contraband recovered from the petitioner for which he is put to trial falls under intermediate quantity, thus, rigors of Section 37 NDPS, Act do not apply. If that is so, then the general principles as are contained under Section 437 of Cr.P.C corresponding to 480 of BNSS can be resorted to. However, one of the considerations for granting the bail is the satisfaction as to whether there is likelihood of repeating or re-offending the offence, in case concession of bail is granted.

Though in the case on hand given the nature of offence alleged to have been committed by the petitioner, there is no absolute statutory Bar for grant of bail, nonetheless NDPS, Act is special statute with stringent provisions enacted with the object to deter habitual offenders, as drug trafficking poses grave threat to the society. Therefore, once it is seen that petitioner is involved previously in similar offence and FIR is registered, in that event prima facie it appears that one of the conditions of likelihood of repeating the offence would surely stares at him and also stands as bar in securing the concession of bail.

As the prosecution story goes the petitioner is already involved in similar FIR under NDPS Act, inasmuch as his conduct is also not above the board though the trial Court has specifically noted that the petitioner has concealed the fact of his involvement in commission of similar offence as FIR stands registered but again, while filing the petition before this Court, he did not disclose the same, however, it is only when a specific query was put to learned counsel for the petitioner that too when the fact of his previous involvement was pointed out by learned counsel for respondent, he filed the application, therefore, on account of his conduct also, the petitioner does not deserve the concession of bail.

By now it is well settled proposition of law that while granting bail inter alia, it has to be borne in mind that as to whether there is also likelihood of the offence being repeated; and also character, behavior, position and standing of the accused. In this regard reference can be made to the judgment of Hon’ble Supreme Court in Neeru Yadav vs. State of UP and another (AIR 2015 SC 3703).

The petitioner has been previously also found involved in the commission of a similar offence under the NDPS Act and had deliberately concealed this material fact before the learned trial Court and also before this Court, therefore, keeping in view the stage of the trial, conduct of the petitioner and the larger interest of society, petitioner does not deserve the concession of bail at this stage.

Accordingly, the bail application is dismissed.