Srinagar, Oct 7: The High Court of J&K and Ladakh has granted bail to an accused NDPS Act, observing that the seriousness of an offence cannot by itself justify indefinite pre-trial incarceration where the foundational material relied upon to attract the statutory rigour of Section 37 of the Act is not sufficiently compelling against the particular accused.
A bench of Justice Sanjay Parihar, while granting bail to the accused, Khayal Shafi Badana, noted that no contraband or other incriminating article had been recovered from his possession.
While allowing Badana’s plea over bail, the court noted the gravity of the offence alone could not justify indefinite pretrial incarceration where the foundational material against the particular accused was not sufficiently compelling.
The court observed that there can be no gainsaying that trafficking in narcotic drugs poses a grave threat to public health and social order, with particularly serious consequences for the younger generation.
Badana is facing trial in FIR No. 17/2023 registered at Police Station Rajbagh under Sections 8/21, 29 and 27-A of the NDPS Act. The case relates to the alleged recovery of 11 kilograms of heroin-like substance and Rs 11.82 lakh in cash from premises occupied by the principal accused, Sajad Ahmad Badana.
The prosecution stated that Khayal Shafi Badana had conspired with the principal accused and other co-accused in procuring and transporting narcotics and that part of the proceeds from the alleged sale had been deposited into his bank account. The petitioner, however, contended that the financial transaction was related to a loan between him and his brother-in-law.
The court took note of the fact that a co-accused, Abdul Rashid Kohli, had already been granted bail in the same case on substantially similar allegations. It held that the prosecution had failed to demonstrate any material distinction warranting different treatment of the petitioner.
The court further held that mere frequency of calls between the petitioner and the co-accused, without material showing what transpired during those conversations, could not by itself establish that he was aware of the alleged narcotics activities. It also held that deposits or transfers into his bank account could not, without material establishing their nexus with drug proceeds, automatically establish his participation in the alleged conspiracy.
The court accordingly directed his release on bail on furnishing a personal bond of Rs 50,000 with two sureties of the like amount and imposed other restrictions.
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