In a significant ruling, the Jammu & Kashmir and Ladakh High Court has clarified that contraband recovered separately from individuals, even when they are traveling together, must be treated individually for the purpose of deciding a bail application.

The judgment was delivered by Justice Sindhu Sharma while hearing Bail Application No. 261/2024, filed by Abdul Hamid, who was arrested under the NDPS Act.

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"Though the applicant was found together in the said vehicle, the contraband was recovered from his possession individually, therefore it must be considered separately," observed the court.

Background of the Case

The application for bail was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in connection with FIR No. 212/2024 dated 17.09.2024, registered at Police Station Rehmbal for offences under Sections 8, 21, and 22 of the NDPS Act.

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As per the prosecution, a Naka checking team intercepted a car bearing registration number JK02DH-2486 traveling from Jammu to Srinagar. Three persons were found in the vehicle:

• Mukhtar Ahmed (driver)
• Mohd. Hafiz (front seat passenger)
• Abdul Hamid (rear seat passenger)

During personal frisking:

• Abdul Hamid was found with 104.89 grams of heroin-like banned substance in his jeans pocket.
• Mukhtar Ahmed had 106.86 grams of a similar substance in his jeans pocket.

An FIR was registered, and during the course of investigation, Section 29 (criminal conspiracy) of the NDPS Act was also invoked, alleging that the accused acted in connivance for the illegal drug trade.

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The counsel for Abdul Hamid argued that:

• The quantity of contraband seized (104.89 gms) from him falls within the intermediate category, and therefore, Section 37 of the NDPS Act (which applies to commercial quantity) is not attracted.
• The recovery was made individually, not jointly, and must be assessed on that basis.
• The applicant has been in custody since 18.09.2024, and the investigation is complete, with the chargesheet filed.
• There is no necessity for continued custody as the matter now proceeds to trial.

"The contraband found from the possession of the applicant is less than commercial quantity, as such, Section 37 of the NDPS Act would not be applicable," the court stated.

The prosecution objected to the bail plea, arguing:

• The total combined recovery from the accused crosses the commercial threshold.
• All three accused were acting under a common intention and were involved in illegal drug supply.
• The offence is serious and heinous, and bail should not be granted as it poses a threat to public safety.

However, the court noted that:

"The fact that all accused persons were acting under common intention has to be established during the trial. At the bail stage, the individual recovery is what matters."

Justice Sharma referred to the Supreme Court’s decision in Amarsingh Ramjibhai Barot vs. State of Gujarat [2005 (7) SCC 550], where the apex court held:

“There was no warrant for concluding that there was a criminal conspiracy where each individual was found carrying substances separately.”

The court also took note of several other rulings presented by the applicant’s counsel, including:

• Rashida Iqbal Khan v. State of Maharashtra
• Sagar Nana Borkar v. State of Maharashtra
• Sajjad Ahmed v. UT of J&K & Others

The High Court emphasized that for intermediate or small quantities, the criteria for bail are governed by Section 437 CrPC, and not by Section 37 of the NDPS Act, which applies only in the case of commercial quantity.

Given that Abdul Hamid was in jail for over six months, and the investigation was complete, the court found no justification to deny bail.

The court granted bail to Abdul Hamid subject to the following conditions:

1. Furnish a personal bond of ₹1,00,000/- with one surety of the same amount.
2. Must cooperate with the trial and appear before the trial court as directed.
3. Cannot leave the territorial jurisdiction of UT of J&K without prior permission.
4. Must not threaten or influence any witnesses or persons connected with the case.
5. Shall not commit a similar offence while on bail.

"With these observations, the instant bail application is disposed of."

APPEARANCE:

N. D. Qazi,, Advocate For Petitioner

Sumeet Bhatia, GA For Respondents

Case-Title: Abdul Hamid vs UT OF J&K, 2025