Jammu & Kashmir High Court
Imam Hussain @ Maltu vs Ut Of J&K And Anr on 18 October, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 07.10.2025
Pronounced on: 18.10.2025
Uploaded on:18.10.2025
Whether the operative part or
full judgment is pronounced
Case No.:- Bail App No. 37/2025
CrlM No. 238/2025
c/w
Crl R No. 33/2025
CrlM No. 553/2025
Imam Hussain @ Maltu
.....Petitioner(s)
Through: Ms. Vasudha Sharma, Advocate
Vs
UT of J&K and anr.
..... Respondent(s)
Through: Mr. Vivek Mattoo, Assisting counsel vice
Mr. Vishal Bharti, Dy. A.G
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner-Imam Hussain @ Maltu, through the medium of
present bail application has invoked jurisdiction of this Court
under Section 483 of BNSS for grant of bail in case arising out
of FIR No. 109/2023 for offences under Sections
8/21(c)/22(c)/25/27(a)/29 of NDPS Act, 1985. He has also
challenged order dated 20.11.2024 passed by learned
Additional Sessions Judge, Samba (hereinafter referred to as
"the trial Court") whereby charges for offences under Sections
8, 21(c), 25, 27-A and 29 of NDPS Act have been framed
against him.
2. As per case of the prosecution, on 25.11.2023, the police of
police station, Ghagwal had laid a Naka at Rajpura, near
Police Post, Rajpura. At about 1200 hours, one Mahindra
Boler vehicle bearing registration No. JK02AE/5538 was
proceeding from Sherpur towards Rajpura side. The said
vehicle was signalled to stop for checking purpose but the
driver of the vehicle tried to drive away the vehicle and in this
process, the vehicle collided with the official vehicle of police
post, Rajpura bearing registration No. JK21F/8385. The police
party apprehended one person who was sitting in the vehicle
bearing registration No. JK02AE/5538 on its front seat,
whereas, driver of the vehicle fled away from the spot. The
apprehended person was identified as Liqauat Ali @ Lucky who
identified the driver of the offending vehicle as Baghu, a
resident of Sarore of Bari Brahmana.
3. Accused Liqauat Ali @ Lucky was subjected to personal search
after complying with the mandate of Section 50 of the NDPS
Act and from his personal search, approximately 550 to 650
gms of Heroin like substance was recovered from right side
pocket of his trouser. The vehicle in question was also
subjected to search from which one Vivo Mobile Phone without
Sim Card was recovered. The apprehended accused disclosed
before the police that he had brought the contraband from
Gurdaspur, Punjab for the purpose of selling it to youth at
Samba. A docket in this regard was prepared on the basis of
which the aforesaid FIR came to be registered whereafter,
accused Liqauat Ali @ Lucky was arrested.
4. During investigation of the case, the recovered contraband was
seized and it was weighed. Its weight was found to be 589
grams without polythene. The samples were drawn from seized
contraband, the same were sealed and sent to FSL for
chemical analysis. The vehicle bearing registration No.
JK02AE-5538 was also seized. The mobile phone recovered
from the vehicle was seized and sent to FSL Srinagar for
analysis. It was found that the vehicle in question was
registered in the name of petitioner herein. It was stated by the
apprehended accused that the petitioner and co-accused
Baghu used to visit Punjab frequently for the purpose of
buying Chitta in order to sell the same to youth of Samba and
other adjoining districts. It was also disclosed by the said
accused that the petitioner has purchased the vehicle in
question from the sale proceeds of Heroin. The investigating
officer also collected the Call Data Record and tower location of
the accused persons and from its analysis, it was found that
all the accused persons used to frequently visit Punjab from
Samba and were in contact with each other. After obtaining
the FSL report, it was found that the recovered substance is
Diacetylmorphine (Heroin).
5. After completion of investigation of the case, offences under
Sections 8/21(c)/22(c)/25/27(a)/29 of NDPS Act, 1985 were
found established against accused Liqauat Ali @ Lucky, Baghu
and Imam Hussain @ Maltu, the petitioner herein. Initially, the
Challan was laid only against the co-accused Liqauat Ali @
Lucky as other two accused were absconding but later on,
after the arrest of the petitioner, a supplementary Challan was
produced before the learned Additional Sessions Judge,
Samba.
6. It seems that the petitioner had approached learned Additional
Sessions Judge, Samba (trial Court) for grant of bail but his
application was rejected by the said Court in terms of orders
dated 21.10.2024 and 03.01.2025. On 20.11.2024, the
learned trial Court passed another order whereby charges for
offences under Section 8, 21 (c), 25, 27-A of NDPS Act were
framed against the petitioner.
7. The petitioner has sought bail and has challenged the order
whereby charges have been framed against him on the
grounds that the material collected by the investigating agency
during the investigation of the case does not disclose
commission of any offence by the petitioner. It has been
submitted that case of the prosecution as against the
petitioner hinges on the disclosure statement made by co-
accused Liqauat Ali @ Lucky which has not even been made
part of the charge-sheet nor the same has been recorded in
writing by the investigating agency. It has been further
contended that even the Call Data Records do not connect the
petitioner to alleged crime as there is no document on record
to establish that the Cell numbers attributed to the petitioner
were actually being used by him. It has been submitted that
merely on the basis of CDRs, the petitioner cannot be
implicated in the alleged offences.
8. The respondent-prosecuting agency has, in its reply to the
application has, after narrating the allegations contained in
the charge-sheet against the petitioner and co-accused
contended that the petitioner is involved in a heinous offence
inasmuch as, commercial quantity of contraband substance
has been recovered from the co-accused with whom the
petitioner had hatched a conspiracy, therefore, he does not
deserve the concession of bail.
9. I have heard learned counsel for the parties and perused the
record of the case including the record of trial Court.
10. So far as principles for grant of bail in a non-bailable offence
are concerned, the same are more or less well settled on the
basis of judicial precedents of the Supreme Court and of this
Court. The factors required to be considered for deciding an
application for grant of bail are stated as under:
a) Whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence.
b) Nature and gravity of the accusation.
c) Severity of the punishment in the event of conviction.
d) Danger of the accused absconding or fleeing if released on
bail.
e) Character, behaviour, means, position and standing of the
accused.
f) Likelihood of the offence being repeated.
g) Reasonable apprehension of the witnesses being
influenced.
h) Danger of justice to be thwarted by grant of bail.
11. So far as offences under NDPS Act are concerned, in cases
involving recovery of commercial quantity of the contraband as
also in the cases in which the accused is alleged to be involved
in an offence under Section 27-A of the said Act are
concerned, besides the aforesaid factors, at the time of
considering a prayer for bail of the accused, the Court is also
required to factor in the provisions contained in Section 37 of
the NDPS Act. As per the provisions contained in the said
section, before releasing an accused on bail, public prosecutor
has to be given an opportunity to oppose the application and
the Court has to be 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. Section 37 of
NDPS Act is not complete bar to the grant of bail in a case
where recovery of contraband drug falls under the parameters
of commercial quantity or where accused is alleged to be
involved in offence of financing illicit trafficking and
harbouring offenders. It only provides that bail in such cases
cannot be granted unless the prosecutor has been given an
opportunity to oppose the application and the court is satisfied
that there are reasonable grounds for believing that he is not
guilty of such offence and that there is no likelihood of his
committing any offence while on bail.
11. In the backdrop of the aforesaid legal position, let us now
advert to the facts of the present case. The allegation against
the petitioner is that he is involved in conspiracy to possess
commercial quantity of contraband substance which has been
recovered from the possession of co-accused Liqauat Ali @
Lucky. It is alleged that the petitioner has allowed his vehicle
to be used for transportation of commercial quantity of
contraband and that he has been involved in financing of illicit
traffic and harbouring of offenders. Thus, the petitioner has
been booked for offences under Sections
8/21(c)/22(c)/25/27(a)/29 of NDPS Act, 1985. Vide order
dated 20.11.2024 passed by the learned trial Court, charges
for the aforesaid offences stand framed against the petitioner
which has been impugned by the petitioner by virtue of
revision petition bearing Crl R No. 33/2025. The contention of
the petitioner is that there is no material on record of the
charge-sheet which can connect him with the alleged crime.
12. In the above context, if we have a look at the material collected
by the investigating agency during investigation of the case, it
is revealed that we have material to show that 589 grams of
heroine have been recovered from the possession of co-
accused Liaquat Ali @ Lucky. Merely on the basis of statement
of said accused that the petitioner is also involved in the
conspiracy to possess and sell contraband substance, he
cannot be charged for the offences of possessing or selling
contraband substance, as the said statement is inadmissible
in evidence because the same is alleged to have been made
before the police and it has not led to discovery of any fact.
Apart from this, the said statement of the co-accused Liqauat
Ali @ Lucky has not even been recorded by the investigating
agency.
13. However, besides this statement, we have on record of the
charge-sheet the material to show that vehicle No.
JK02AE/5538 has been seized in which co-accused Liqauat
Ali @ Lucky was travelling along with the contraband. The said
vehicle as per the material collected by the investigating
agency is registered in the name of petitioner. Therefore, there
is material on record to prima-facie show that the petitioner
has allowed his vehicle to be used for transportation of
contraband which was recovered from the possession of
occupant of the said vehicle. Not only this, the Call Data
Records show that the petitioner was in constant touch with
co-accused Liqauat Ali @ Lucky and driver of the said vehicle,
co-accused Baghu. There is also material on record that all the
three of them have visited Punjab at one and the same time
which is clear from the tower locations regarding which
material has been collected by the Investigating Agency. Thus,
there are strong circumstances which tend to show that the
petitioner has been in touch with other co-accused and that he
has allowed his vehicle knowingly to be used for commission of
the offence. From this material, prima-facie, it appears that
the petitioner is involved in commission of offences for which
he has been charged. Thus, it can be safely stated that there
are grounds for presuming that the petitioner is involved in the
commission of the offences for which he has been charged. His
plea for discharge is, therefore, meritless.
14. So far as the question of grant of bail to petitioner is
concerned, as already stated, the petitioner is alleged to be
involved in conspiracy relating to possession of commercial
quantity of contraband by knowingly allowing his vehicle to be
used for commission of the said offence. Therefore, provisions
contained in Section 37 of the NDPS Act are attracted to the
facts of the present case. Since the petitioner has failed to
satisfy this Court that there are reasonable grounds to believe
that he is not guilty of offence for which he is charged,
therefore, he is not entitled to grant of bail.
15. The trial of the case has begun only about a few months back
and it is still at its inception. Further, it is to be noted that the
petitioner had absconded after the registration of the FIR. In
view of his said conduct and keeping in view the fact that most
of the prosecution witnesses are yet to be examined, enlarging
the petitioner on bail at this stage is likely to thwart the course
of justice.
16. For the foregoing reasons, both the petitions are found to be
without any merit. The same are, accordingly, dismissed.
(SANJAY DHAR)
JUDGE
JAMMU
18.10.2025
Tarun/PS
Whether order is speaking: Yes
Whether order is reportable: Yes
Mahavir Singh
2025.10.18 17:54
I attest to the Bail App
integrity of this document
