FSL Expert’s Opinion Regarding Contents Of Recovered Contraband Absent: Jammu & Kashmir & Ladakh High Court Grants Bail In NDPS Case
|The Jammu & Kashmir and Ladakh High Court allowed the Petition under Section 483 of the BNSS.
The Jammu and Kashmir and Ladakh High Court granted bail in an NDPS case, while remarking that there is no opinion of the FSL expert in respect of the alleged recovered contraband.
The Court allowed the Petition under Section 483 of the BNSS, where the Petitioner sought bail for offences under Sections 8, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
A Single Bench of Justice Sanjay Dhar held, “When it comes to offences punishable under NDPS Act, particularly those which involve possession of commercial quantity of contraband substance, the court has to keep in view something more than aforesaid principles. Section 36C of the NDPS Act makes Code of Criminal Procedure applicable to the proceedings before a Special Court which includes the provisions as to bail and bonds. However, Section 37 of the NDPS Act stipulates additional conditions before a person accused of committing an offence involving commercial quantity of contraband substance is released on bail.”
Advocate Abu Owais Pandit appeared for the Petitioner, while Government Advocate Faheem Nisar Shah represented the Respondents.
Brief Facts
As per the prosecution, the Petitioner was indulging in the illicit trade of drugs. It was also informed that the Petitioner, along with the co-accused, had concealed the drugs and were indulging in the sale of narcotic drugs and psychotropic substances to children. The Petitioner’s involvement emerged from the disclosure statement of the co-accused.
Court’s Reasoning
The High Court explained that “Section 37 of NDPS Act is not a complete bar to grant of bail in a case where recovery of contraband drug falls within the parameters of commercial quantity. It only provides that bail in such cases cannot be granted unless the Public Prosecutor has been given an opportunity to oppose the application and that there are reasonable grounds to believe that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.”
“In the present case, the prosecution has alleged that a team headed by the Executive Magistrate concerned raided the premises of petitioner wherefrom 11 bottles of codeine were recovered from his bedroom. The Executive Magistrate, whose statement has been recorded during trial of the case, has categorically stated that he did not accompany the raiding party and he only sealed the samples which were brought to his office by the police. Prima facie, the aforesaid statement of the head of the raiding team creates a dent in the prosecution story,” the Bench noted.
The Court remarked, “Another aspect of the matter that has come the light upon perusal of the trial court record is that out of 11 recovered bottles of codeine, only three bottles have been sealed and sent to FSL for examination, regarding which the Chemical Examiner has rendered his opinion. Thus, there is no opinion of the FSL expert in respect of other eight recovered bottles. Learned counsel for the petitioner has contended that in the absence of the opinion of the FSL expert with regard to contents of eight recovered bottles, it cannot be stated that the petitioner was found to be in possession of commercial quantity of contraband drugs.”
Consequently, the Court ordered, “In view of the what has been discussed hereinbefore, it appears that there are reasonable grounds for believing that the petitioner is not guilty of offence of possessing commercial quantity of contraband drugs. The respondents have not placed on record any material to show that the petitioner has any previous history of having indulged in trade of illicit drugs nor have they placed on record any material to show that in case he is admitted to bail, he is likely to commit similar offences. Thus, the petitioner has succeeded in carving out a prima facie case for grant of bail in his favour.”
Accordingly, the High Court allowed the Petition.
Cause Title: Touseef Ahmad Khan v. UT Of J&K (Bail App No. 19/2025)
Appearance:
Petitioner: Advocate Abu Owais Pandit
Respondents: Government Advocate Faheem Nisar Shah; Advocate Maha Majeed