Jammu & Kashmir High Court
Mehmood Zahid vs Ut Of Jammu & Kashmir Through Police on 8 October, 2025
Sr. No. 02
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No: Bail App No. 202/2025
Date of pronouncement:-08.10.2025
Uploaded on: 09.10.2025
Mehmood Zahid, Aged 23 years,
S/o Khalid Mehraj Qurashi,
R/o WatnarKokernag, District Anantnag.
At present District Jail, Amphalla.
.... Petitioner/Applicant(s)
Through:- Mr. Priyanshu Sharma, Advocate.
V/s
UT of Jammu & Kashmir Through Police
Station, ANTF, Gandhi Nagar, Jammu. .....Respondent(s)
Through:- Mr. Pawan Dev Singh, Dy.AG.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
1. The petitioner, Mehmood Zahid, is facing trial in FIR No. 14 of
2021 for offences punishable under Sections 8/20/29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, "the Act") before the Court of the Special Judge (NDPS
Cases), Jammu. The prosecution case, in brief, is that on
19.12.2021, the respondent-Agency, acting upon reliable
information, learnt that the petitioner, along with co-accused Azher
Din, was transporting contraband in vehicle No. JK12A-6379 from
Srinagar to Jammu, with the intention of handing over the
consignment to another co-accused, who was driving a Maruti
Ignis bearing Registration No. JK02CR-2163. Both vehicles
were allegedly parked near the Overhead Railway Bridge, Sainik
Colony, Jammu.
2. Pursuant to the said information, a raid was conducted at the spot,
where three persons were found seated in the Ignis car, co-accused
Bunny Gupta was at the driver's seat while the petitioner and
another person occupied the rear seat. All three were apprehended,
and upon search, two packets containing chars-like substance were
recovered from beneath the driver's seat of the Ignis car, weighing
3.564 kilograms (inclusive of packing material) and 3.422
kilograms (net weight). Since the accused persons failed to offer
any plausible explanation regarding possession of the contraband,
the present case came to be registered. The investigation revealed
that the petitioner and his co-brother had transported the
consignment from Srinagar and delivered it to co-accused Bunny
Gupta for onward sale and distribution.
3. Upon completion of the investigation, a charge sheet was filed
against the petitioner and the co-accused on 06.06.2022, and the
trial is presently in progress. The petitioner's earlier bail application
came to be dismissed by the trial Court on the ground that the
recovery involved a commercial quantity of contraband, thereby
attracting the rigour of Section 37 of the NDPS Act. It was further
noted that although one of the co-accused had been released on bail,
the petitioner's case, in view of the gravity of allegations, did not
merit similar indulgence, leading to rejection of his application and
consequent filing of the present petition before this Court.
4. The respondents have resisted the bail plea by contending that the
petitioner is not entitled to bail as a matter of right, particularly
when the investigation has substantiated the commission of
offences under Sections 8/20/29 of the Act. It is urged that the
recovery pertains to commercial quantity, and hence the statutory
embargo under Section 37 stands squarely attracted. It is further
submitted that framing of a charge against the petitioner for
possession and trafficking of narcotic substances constitutes a grave
circumstance, militating against the grant of bail.
5. Per contra, learned counsel for the petitioner submits that a Co-
ordinate Bench of this Court, by order dated 18.03.2025, has
already granted bail to co-accused Azher Din, whose case stands
on an identical footing with that of the present petitioner. It is
further urged that even co-accused Bunny Gupta has been enlarged
on bail on health grounds, and therefore, on the touchstone of
parity, the petitioner too deserves similar treatment. Reliance is
also placed on the judgment of this Court rendered in Mohd.
Roshan vs. Union of India & Anr., decided on 23.05.2025,
wherein it has been held that prolonged incarceration, coupled with
the unlikelihood of early conclusion of trial, warrants the grant of
bail notwithstanding the restrictions under Section 37 of the Act, to
uphold the mandate of Article 21 of the Constitution of India.
6. I have given my thoughtful consideration to the submissions made
at the Bar and carefully examined the material available on record.
7. The petitioner, along with other co-accused, stands charge-sheeted
on 06.06.2022 for commission of offences punishable under
Sections 8/20/29 of the NDPS Act, 1985. It was pointed out during
the course of the hearing that out of 22 witnesses cited by the
prosecution, only 07 have been examined so far, whereas the
petitioner has been in custody since 19.12.2021 as an under-trial
prisoner. The right to speedy trial being an intrinsic facet of Article
21 of the Constitution of India, prolonged incarceration without
conclusion of trial impinges upon that fundamental guarantee. That
said, the recovery involved in the present case pertains to a
commercial quantity of contraband, which attracts the rigour of
Section 37 of the NDPS Act. The Hon'ble Supreme Court in
Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 Live Law
(SC) 260, has held that when statutory provisions curtail an
accused's right to bail and fetter judicial discretion, as under
Section 37 of the Act, such restriction embodies a balance between
two competing values -- the liberty of the accused, grounded in the
presumption of innocence, and the collective interest of society.
8. It has been contended that the petitioner has not, at any stage,
caused any impediment in the progress of the trial. Considering the
pace at which the trial is proceeding, the apprehension of the
petitioner that the proceedings are likely to consume substantial
time cannot be brushed aside. This Court is conscious that the trial
is being conducted before the Court of Special Judge (NDPS
Cases), Jammu, which has been constituted specifically for
expeditious disposal of cases under the NDPS Act. However, it has
been brought to the notice of this Court that the said Court is
overburdened with more than 700 cases pending for over five
years, and a total pendency exceeding 2000 cases. In such
circumstances, a delay in the conclusion of the trial appears
inevitable unless an additional Special Court is constituted to deal
exclusively with NDPS matters. While such pendency by itself may
not entitle the petitioner to bail, the ground of parity pressed into
service by the learned counsel does warrant consideration, in view
of the fact that a Co-ordinate Bench of this Court, vide order dated
18.03.2025, has already granted bail to the petitioner's co-brother
and co-accused Azher Din, whose case stands on an identical
footing.
9. Upon examination of the record, it emerges that the allegation
against the petitioner and co-accused Azher Din is that they
transported charas from Srinagar for delivery to co-accused Bunny
Gupta for further transportation outside the Union Territory of
Jammu and Kashmir. At the time of interception, the petitioner and
Azher Din were seated on the rear seat of the offending vehicle,
whereas the recovery of contraband was affected from beneath the
driver's seat occupied by Bunny Gupta.
10. The prosecution seeks to invoke Section 29 of the Act to allege
criminal conspiracy; however, except for the petitioner's presence
in the vehicle, no tangible material has been shown to establish his
direct control over or possession of the recovered contraband. The
respondents have relied upon call detail records (CDRs) to suggest
complicity, yet the same, at this stage, do not conclusively
demonstrate conscious possession or control.
11. Though the recovery of commercial quantity renders the
accusations grave, once a co-accused standing on an identical
footing has already been admitted to bail, and such order has
attained finality, denial of similar relief to the petitioner would
amount to discriminatory treatment, contrary to the settled principle
of parity. The learned trial Court, while declining bail, appears not
to have appreciated this aspect in proper perspective.
12. It is trite that Section 37 of the Act, though restrictive, cannot be
construed in a manner that defeats the fundamental right to life and
personal liberty enshrined in Article 21. The prolonged
incarceration of the petitioner, coupled with the pendency of trial
and the bail already granted to a similarly placed co-accused,
persuades this Court to hold that the petitioner has made out a
strongprima facie case for the grant of bail.
13. Accordingly, the bail application is allowed. The petitioner,
Mehmood Zahid, is ordered to be released on bail subject to his
furnishing two sureties in the sum of ₹1,00,000/- each and a
personal bond of the like amount, to the satisfaction of the
learned trial Court. The trial Court shall be at liberty to impose such
additional conditions as may be necessary to ensure the petitioner's
presence during trial and to prevent any misuse of the concession of
bail.
14. The bail application, along with connected miscellaneous
applications, stands disposed of accordingly.
15. Let a copy of this order be transmitted to the learned trial Court for
compliance.
(SANJAY PARIHAR)
JUDGE
JAMMU
08.10.2025
Ram Krishan
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
+
Ram Krishan
2025.10.09 18:04
integrity of this document
