Jammu & Kashmir High Court - Srinagar Bench
Zeeshan Nisar vs Ut Through Ssp Ang And Ors on 27 October, 2025
1
S. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(virtual mode)
Bail App No. 34/2025
Zeeshan Nisar ...Petitioner(s)
Through: Mr. Fayaz Ahmad Sodagar, adv.
VS.
UT through SSP Ang and ors ...Respondent(s)
Through: Mr. Waseem Gul, GA
CORAM:
Hon'ble Mr. Justice Mohd. Yousuf Wani, Judge.
ORDER
27.10.25
1. Through the medium of the instant successive bail petition
filed in terms of provisions of Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS for short),
corresponding to Section 439 of the Code of Criminal
Procedure, 1973 (now repealed), the petitioner has sought the
concession of bail in his favour in case FIR No. 124 of 2024 of
Police Station Anantnag U/ss 8/21, 29 NDPS Act., on the
grounds inter alia that he is innocent and has been falsely
implicated in the case FIR in question. That he has been
implicated in the case FIR on mere allegation of his being
present in the vehicle wherefrom contraband substance has
allegedly been recovered. That the Investigating Agency did not
collect any evidence to establish his conscious possession in
respect of alleged contraband. That the final report/challan in
the case FIR has already been presented before the competent
trial court and is pending disposal. That he has been implicated
in the case FIR by the invocation of provisions of Section 29 of
the NDPS Act as a co-conspirator without any concrete basis.
That he has been arrested in the case on 14.06.2024 and since
then has been suffering incarceration on the basis of his false
implication in the case. That he has been implicated as co-
accused in the case FIR on the ground of his being also present
in the vehicle along with main accused by invoking the
provisions of Section 29 of the NDPS Act and none of the
witnesses examined during investigation has revealed his any
role other than his being present in the vehicle with the other
accused. That his mere sitting in the vehicle wherefrom the
alleged contraband has been seized does not constitute
conscious possession under law. That he was neither the owner
of the vehicle nor was driving the same which facts are
sufficient to infer that he cannot be supposed to be in the
conscious possession of the alleged contraband. That the only
evidence relied upon by the prosecution against him, is, his
own alleged statement recorded during the investigation while
his being in custody which is not relevant at all as same has
not led the Investigating agency to any further recovery. That
none of the prosecution witnesses has stated during
investigation that he had any knowledge about the presence of
the contraband in the vehicle and as such even if the
prosecution evidence as recorded during investigation remains
unrebutted, same shall not lead to his conviction. That the
alleged Bill, the supply order in respect of the sale to some
Delhi firm, the receipt of tile cleaner are not in his name which
is sufficient to discredit the allegation of his being a co-
conspirator in respect of the alleged Narcotic substance. That he
has been also charged by the learned trial court u/s 8/21, 29
NDPS Act vide order dated 02.12.2024 and the matter is
pending trial presently at the stage of recording of prosecution
evidence. That the investigating agency for his implication, in
the case has also relied upon the statement of the co-accused
(accused No.1) which is also not admissible in terms of
provisions of Section 67 of NDPS Act., in the facts and
circumstances of the case, when no further recovery or a new
fact has been ascertained on the basis of the same, attributable
to him. That while considering the prosecution evidence in
totality there exists no "reasonable ground" for his involvement
in the offences charged against him. That the statement of the
co-accused and also his own statement alleged to have been
made by them in police custody and without being followed by
any other recovery are not admissible in evidence under
Sections, 25, 26, 27 of the Evidence Act. That the statement of
owner of the transport carrier to the effect that the accused No.1
namely Ubair Majeed had placed the order for supply with the
Delhi based firm and the bills etc are also in his name, clearly
unjustify his involvement in the case. That during the pendency
of the main bail application filed before the learned trial court
on 11.12.2024, an application for interim bail on medical
grounds was also filed but the learned trial court while
disposing of the main bail application vide order dated
27.02.2025 did not address to the medical grounds. That on
14.02.2025 while being lodged in the Jail he suffered very acute
chest pain whereupon he was taken to the Government Medical
College Hospital, Anantnag, where the Doctors diagnosed him
a case of heard stroke. That the Trop-T test was done along with
ECG and Trop-T test showed his reading as 16.49. That he on
account of his heart problem requires thorough specialized
medical treatment in connection whereof he has to undergo
some related tests, such as, TMT, ECHO and Angiography as
advised by the doctors which is not possible without the
association of his family members. That his heart problem is
likely to get worsened in jail and there is every threat to his life.
That he has been suffering from incarceration since last more
than a year and his case is still at the stage of recording of
prosecution evidence. That he shall abide by any conditions that
may imposed by this court in case of his enlargement on bail.
2. The respondents/UT have resisted the bail application of the
petitioner through the medium of objections filed by learned
AAG, on the grounds that petitioner/accused is involved in
heinous offences punishable under Section 8/21, 29 of NDPS
Act and, as such, does not deserve the concession of bail. That
the menace of drug addiction has engulfed the whole society, so
much so that a havoc has been created which justifies the
dealing of the drug offenders with strong hand. That the liberty
of the petitioner/accused has not been curtailed but only
restricted in accordance with the procedure established under
law. That there are apprehensions of misuse of concession of
bail by the petitioner by tampering with the prosecution
evidence and absconding at the trial. That the offences
committed by the petitioner-accused are highly anti-social. That
the court is needed to strike a balance between individual
liberty and the interests of the whole society. That there is every
apprehension that petitioner shall not face the trial in case
enlarged on bail under the fear of stringent punishment
provided for the offences charged against him.
3. I have heard the learned counsel for both the parties.
4. Learned counsel for the petitioner-accused while reiterating his
stand already taken in the bail petition submitted that the
petitioner has been falsely and frivolously implicated in the
case FIR when he is innocent and has not committed the
alleged offences. That in the facts and circumstances of the
case, no conscious possession in relation to the alleged Narcotic
substance can be attributed to him. That mere fact of
petitioner‟s sitting in the vehicle of the accused No.1 being one
of his known persons cannot be the basis for attributing
conscious possession with respect to him. The learned counsel
contended that it is a settled legal position that conscious
possession pre-supposes both physical as well as mental
possession. It was further contended by the learned counsel that
presumptions under sections, 34 & 54 of the NDPS Act cannot
operate without any basis and the prosecution before invoking
the statutory presumptions has to prove the foundational facts
of its case, which has not been done in the instant case.
Learned counsel further submitted that the petitioner-accused
has been implicated solely on the basis of alleged disclosure
statements of co-accused and as well of his own attributed to
them to have been made while they were in police custody,
which are not admissible under law, for the simple reason that
said disclosures attributed to them to have been made during
police custody have not been followed by any sort of recovery
or discovery of a new fact.
He further contended that the trial in the case is going on
since last more than one year, and the case, is still at the stage
of recording of prosecution evidence. Learned counsel further
contended that petitioner-accused has been suffering from
heart problem who needs a formal documented investigation
and treatment to save his life which is possible only when he is
at large and in the association of his family members. Learned
counsel further contended that in the facts and circumstances of
the case, the petitioner-accused cannot be implicated on the
basis of the alleged conspiracy when nothing has been
recovered from his possession or even at his instance.
Learned counsel submitted that the petitioner is deeply rooted
in the society and there is no apprehension of his misusing the
concession of bail. That petitioner-accused shall abide by any
conditions as to furnishing of surety and bail bonds etc in case
he is enlarged on bail.
The learned counsel for the petitioner in support of his
arguments placed reliance on the judgments cited as
"Ramanand vs State of Himachal Pradesh Cr. MP (M)
1820/2023 decided on 4th August, 2023; Sukhdev Singh @
Sukh vs State of Punjab, CRM-M- 984/2021 decided on 19th
April, 2022; Kamalijeet Singh vs. Sh. H.K. Pandey (Intelligence
Officer), decided on 4th March, 2005; Galiv Hussain vs State
GNCT of Delhi Bail Appl. 3425/2022 decided on 25th April,
2023; Jiya Lal vs State of Haryana, CRM-M 65182-2023,
decided on 9th January, 2024; State of West Bengal vs Rakesh
Singh @ Rakesh Kumar Singh, CRIMINAL APPEAL No. 923 of
2022, decided on 11th July, 2022; "Amit Ranjan vs Narcotics
Control Bureau, Delhi", Bail Appln. 1189/2020, decided on
23rd May, 2022".
5. Per contra, the learned AAG for the respondents very
vehemently submitted that petitioner-accused does not deserve
the concession of bail as he has already been charged at the trial
of the case u/ss 8/21, 29 of NDPS Act. That sufficient evidence
was collected by the Investigating officer during investigation
of the case against the petitioner as a co-conspirator of the
offences. The learned UT counsel submitted that the petitioner-
accused was boarding vehicle along with the co-accused and
were carrying the Narcotic substance containing codeine,
phosphate in liquid form in three canes weighing in total
27.800 Kgs. That the petitioner himself made a disclosure
during investigation of the case regarding his involvement in
the case along with the co-accused. That the co-accused also
made similar disclosure regarding his own as well as
petitioner‟s involvement in the case. The learned counsel
submitted that statements of the both the accused persons are
relevant u/s 67 of NDPS Act. Learned UT counsel further
submitted that the case of the petitioner attracts the bar u/s 37 of
the NDPS Act as commercial quantity of manufactured drug
consisting codeine, phosphate-a, Narcotic substance as a
constituent. He submitted that more than 27 Kgs of the liquid
containing codeine, phosphate came to be recovered from
vehicle on the instant date which was being driven by the main
accused and also boarded by the present petitioner. He further
submitted that in the facts and circumstances of the case, every
reasonable and prudent man can believe the conspiracy between
both the accused regarding commission of the crime. He further
contended that the offenses committed by the petitioner-
accused, as co-conspirator are highly anti-social as the menace
of drug addiction has eaten the vitals of the society. That
younger generation especially the school children have fallen
easy prey of drug addiction which needs to be dealt with strong
hand. Learned AAG further contended that earlier bail
application moved by the present petitioner was rejected by the
learned trial court through a detailed order dated 27.02.2025
and there appears no justification under law for enlargement of
the petitioner. The learned UT counsel further contended that
the health issues of the petitioner can be taken care of by the jail
authorities by providing him adequate treatment as and when
required. The learned AAG prayed for rejection of the bail
application.
6. Before proceeding ahead, it is felt to appropriate to reproduce
the facts of the prosecution case relevant for disposal of this
application:-
"The allegations against the accused persons is that on
14.06.2024 Police Station Anantnag received a written
docket from ASI Bashir Ahmad No.204/CR to the effect
that he along with other police personnel was on naka
duty at GBS Crossing K.P. Road. That during naka, the
driver of Swift vehicle bearing registration No.HR29AT-
3269 which was coming from Laizbal towards Khanabal
was asked to stop, however the driver tried to flee from
spot. That, the police party chased him and tactfully
apprehended him on spot along with the said vehicle.
That during preliminary questioning the driver of the
vehicle disclosed his name as Ubaid Majeed Bhat S/O
Abdul Majeed Bhat R/O Channpora Srinagar. Besides
driver one more person was boarded in the said vehicle
who disclosed his name as Zeeshan Nisar Nadaf S/O
Nisar Ahmad Nadaf R/O Channpora, Srinagar (the
petitioner). That during search of vehicle three canes
containing psychotropic substance in the form of
codeinephosphate were recovered. That one cane
contained about 8 to 10 litres, 2ndcane contained about 9
to 10 litres and 3rd cane contained about 4 to 5 litters.
That during questioning for carrying of said psychotropic
substance they did not put forth any plausible explanation
and in fact they intended to sell the same among young
generations on higher rates in order to get them addicted.
That on receipt of said docket FIR No. 124/2024 for
commission of offences under section 8/21 & 29 of
NDPS Act was registered and investigation commenced.
That during investigation the 1.O visited the spot and
prepared the site map. That the statements of witnesses
familiar with the case were recorded under law. That
during investigation recovery as well as seizure memos
of psychotropic substance were prepared on spot. That
during the course of investigation seized psychotropic
substance was put to weight by digital weighing device.
That the first, second and third canes were weighed
11.830 kilograms, 10.660 kilograms and 5.310 kilograms
respectively. That the total weight found was 27.800
kilograms. That the psychotropic substance was sealed
on spot and impression of nut bolt was put on the canes
which were marked as A, B & C. that the samples were
taken from seized psychotropic substance and sent to
FSL Srinagar for analysis. That the offences under
section 8/21 & 29 of NDPS Act were established against
both the accused persons. That after completion of
investigation challan was presented before the court".
7. The final report/challan arising out of the case FIR is presently
pending disposal before the learned Special Court under the NDPS Act
Anantnag and reported to be presently at the stage of recording of
prosecution evidence, as charge has already been framed by the trial
court against both the accused persons u/ss 8/21, 29 of the NDPS Act.
8. The learned trial court vide its order dated 27.02.2025 passed
on the earlier application of the petitioner has declined the concession
of bail to him on the grounds that the material on record indicates his
prima facie involvement in the case involving commercial quantity of
contraband substance who has not accordingly satisfied the limited
parameters allowing the bail in terms of section 37 of the NDPS Act.
The learned trial court while rejecting the earlier bail application has
also observed that it is not safe to hold that accused has effectively
established that there are "reasonable grounds" to believe that he is not
guilty of the offences alleged against him warranting his admission to
bail.
9. Keeping in view the perusal of the instant successive bail
petition, the objections filed in rebuttal by learned state counsel, the
scanned copy of the trial court record especially the statements of
prosecution witnesses examined during investigation of the case and the
consideration of the rival arguments advanced on both the sides, this
court without making any comment regarding the merits of the case is
of the opinion that it may meet the ends of justice in case the petitioner-
accused is admitted to bail in the case FIR in question subject to some
reasonable terms and conditions.
10. Admittedly the petitioner-accused came to be arrested in the
case FIR in question on 14.06.2024 owing to the fact of his being
boarded in the vehicle owned and driven by co-accused and from
which the contraband narcotic substance was allegedly recovered. He
stands involved in the case on the basis of the aforesaid fact coupled
with the alleged disclosure made by him and the co-accused during the
investigation of the case while both of them being in custody. The
learned counsel for the petitioner-accused during his arguments inter
alia contended that such alleged disclosures basing the involvement
of the petitioner are not admissible under law for not having led to any
subsequent recovery or discovery of a new fact. The learned counsel
also during his arguments contended that the presumptions in terms of
section 35 and 54 NDPS Act can be invoked only after the investigation
collects sufficient and credible evidence in support of the foundational
facts of the case and not otherwise. The learned counsel during his
arguments also contended that in the facts and circumstances of the
case no reasonable ground appear to be made out regarding
involvement of the petitioner-accused.
A criminal court while recording his satisfaction as to whether
there appear "reasonable grounds" of involvement of an accused in the
commission of an offense attracting the bar in terms of provisions of
Section 37 NDPS Act., has to use his discretion in a judicious manner
so that no miscarriage of justice happens either by grant of bail or by
denial of the same.
The "reasonable grounds" of involvement can be inferred from
the facts and circumstances of the case especially, the nature of the
evidence. The Court is supposed to consider the broader probabilities to
reach its supposition regarding the existence of reasonable grounds of
involvement of the accused.
The words "reasonable grounds" cannot be read to mean proved
as used in „Bharatiya Sakshya Adhiniyam'. Such an interpretation
would in my opinion set at naught the power vested in a court to grant
bail pending trial.
The expression "reasonable grounds" would obviously mean
something more than mere suspicion and conjectures and something
less than proof. It would necessarily mean such grounds or material
that would prima facie enable a person of ordinary prudence to believe
that the accused is or is not guilty.
It is no doubt true that the object of the legislation of such
disabling provisions is to prevent the offenders from immediately
granting bail in heinous offences. In this view of the matter, the court is
required to examine the material placed before it and then to arrive at a
conclusion that there exist "reasonable grounds" to believe that accused
is guilty or not guilty
The "reasonable grounds" would vary from case to case and
from one accused to another. What may be reasonable in one case may
not be so in another and therefore the words "reasonable grounds"
cannot, on account of a discretion vested in the court, be put into a
straight-jacket. Each case would have to be dealt with and examined on
its own facts and decided keeping in view the mandate of law. The
consideration at the time of taking up of the bail application for
disposal is different from the consideration adopted at the end of the
trial for holding an accused guilty or not guilty. In considering an
application for bail, court is not required to conduct a preliminary trial.
The Courts while deciding bail applications will be traversing beyond
their ambit and would be exceeding their limit of functions if they
engage themselves in discovering the guilt or innocence of the accused
which can only be determined at the trial stage. The courts should not
go at a tangent in order to find out the possible excuses for grant bail.
Whether there are "reasonable grounds" or not is the question which
must be decided judicially, that is to say there should be some tangible
evidence on which the Court might come to the conclusion that if
unrebutted, the accused might be convicted. Whether there are
reasonable grounds for believing that a person is guilty of such an
offence depends on what evidence is offered by the prosecution to the
charge against him.
In order to come to the conclusion, that a person is guilty, the
Court must consider the evidence which if unrebutted may lead to
conclusion that the charge against him stands proved and cannot
unjustifiably hold that there are "reasonable grounds" for believing that
he is guilty. It is a settled position of law that the real question whether
there are reasonable grounds for believing that a person is guilty of
offences attracting bar under Section 37 NDPS Act, depends upon what
evidence is offered by the prosecution to prove the charge against him.
While reaching such conclusion, the Court must consider the nature and
character of evidence against him.
11. The petitioner-accused during his custody in the jail as an under
trial in the instant case is reported to have suffered heard stroke.
12. The petitioner-accused has sought the concession of bail
through the instant successive application before this court on the
health grounds also apart from the merits of the case. He is reported to
have pleaded the health grounds also in the earlier application before
the learned trial court which suffered denial. The petitioner-accused has
been in custody in the case since last more than 16 months. The
learned trial court after framing the charge against both the accused
including present petitioner vide order dated 02.12.2024 called the
prosecution evidence upon pleading not guilty by them. As per the
perusal of scanned copy of the trial court record submitted to this court
under No. 112/NDPS/Anantnag dated 15.05.2025 of the office of the
learned trial court, no prosecution witness appears to have been
examined at the trial till that date. As such the trial of the case is likely
to take much time for its conclusion.
13. The learned counsel for the petitioner-accused during his
arguments also contended that the Investigating officer during
investigation of the case observed mandatory provisions under NDPS
Act in breach which gives the petitioner a right to seek bail.
14. 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 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.
15. 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.
16. 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. 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.
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.
17. 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".
18. 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 the 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."
19. 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 in 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."
20. 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."
21. 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:
"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."
22. 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."
23. The Hon‟ble Apex Court in its judgments cited as Siddharam
Satlingappa Mhetre Vs. State of Maharastra decided on
02/12/2010, AIR 2011 SC 312 and Sushila Aggarwal and others 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."
24. For the foregoing discussion and without commenting on the
merits of the case which obviously shall be the subject matter of the
final disposal of the trial case, petitioner-accused is admitted to bail in
the instant case FIR bearing no. 124/2024 of Police Station, Anantnag
under section 8/21, 29 NDPS Act, subject to his furnishing surety and
personal bonds to the tune of Rs. One lac each (surety bond Rs. One lac
to be furnished by two sureties from amongst the relatives of the
petitioner-accused each liable to the extent of Rs. fifty thousand)
respectively to the satisfaction of the learned trial court and the
superintendent of jail concerned. This order shall however, be subject
to the following conditions:-
i) The petitioner-accused shall remain punctual at the trial
of the case.
ii) The petitioner shall not, directly or indirectly, make any
inducement, threat or promise to any of the unexamined
prosecution witnesses so as to dissuade them from
making their factual statements at the trial.
iii) The Petitioner shall not leave the limits of UT of J&K
without the prior permission of the learned trail court.
iv) The Petitioner shall not repeat the commission of any
crime.
25. In case the requisite surety bonds are furnished to the
satisfaction of the learned trial court and duly attested, a formal
release order shall be issued by learned trial court directing the
release of the petitioner-accused from the place of his lodgment in the
instant case FIR bearing No. 124/24 of P/S Anantnag, subject to
petitioner‟s furnishing of personal bond in the amount of Rs. One lac
to the satisfaction of the Superintendent of jail concerned.
26. Learned trial court shall be competent to proceed against the
petitioner-accused in terms of provisions of sections 491 and 492
BNSS corresponding to Sections 446, 446-A of the Code in the event
of violation of any bail conditions.
27. Disposed of.
(Mohd. Yousuf Wani)
Judge
Jammu:
27.10.2025
"Ayaz"
i) Whether the order is speaking ? Yes
ii) Whether approved for law journal ? Yes
