Accused Granted Bail In FIR Cannot Be Re-Arrested For Different Offence In Same Case After Unreasonable Delay: J&K High Court

The Jammu and Kashmir High Court held that it would amount to a gross deprivation of liberty if an accused who has already been granted bail in the case FIR is charged and arrested for a different offence after a period of 15 years.

The trial court had returned the final report as not being in accordance with the law. It had pinpointed that the investigation in the case began under offences falling under the Drugs and Cosmetics Act and continued for a period of fifteen years and now at the fag end of the investigation, an offence under Sections 8/21 of the NDPS Act was added to the case FIR.

A bench of Justice Mohd Yousuf Wani opined that the arrest of the petitioner-accused at this stage under Section 21 of the NDPS Act, despite his having already been arrested in the same FIR, would amount to a gross deprivation of his fundamental right to life and liberty.

The court also observed that the alleged recovery of 35 bottles of 100 ml Codeine Phosphate mixture from the petitioner falls under the "small quantity" category, reducing the severity of charges under the NDPS Act. The court added that the position of the law at the registration of FIR is that the actual content of the narcotic substance in a mixture is to be considered for the purpose of determining whether the quantity is commercial or otherwise.

The court granted the petitioner-accused anticipatory bail, observing that if the officer did not feel the need to arrest the petitioner under the NDPS Act for 15 years, there was nothing on record to suggest that he would evade the concessions of bail.

The court directed the concerned SHO that, in the event of the arrest of the petitioner-accused in the case FIR under Sections 8/21 of the NDPS Act, he shall be released from custody upon furnishing surety and personal bonds to the satisfaction of the court to the tune of Rs. 20,000/- each.

BACKGROUND:

An FIR was registered against the petitioner at the police station under Sections 6/13 of the Drugs and Cosmetics Act and 3/7 of the Essential Commodities Act. The petitioner was arrested but granted bail the next day. The police continued the investigation for nearly 15 years and presented a final report before the Special Judge under the NDPS Act, Anantnag.

The trial court refused to accept the final report, as the investigation initially began under the Drugs and Cosmetics Act and the Essential Commodities Act but later included an offence under Section 8/21 of the NDPS Act at the final stage. The petitioner argued that this amounted to an abuse of the process of law and sought quashing of the FIR under Section 482 CrPC.

APPEARANCE:

Syed Faisal Qadiri, Sr. Advocate with

Ms. Mariya Amin, Advocate. FOR PETITIONERS

Mubashir Malik, Dy.AG FOR RESPONDENTS

Case-title: Mohammad Abass Magray vs Union Territory of J&K

Citation: 2025 Livelaw (JKL) 83

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