The Court clarified that although the statutory restrictions under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act cannot be diluted, the seriousness of the offence alone cannot justify continued pre-trial detention when the foundational material against the particular accused is not sufficiently compelling.

The Court was hearing a bail application filed by Khayal Shafi Badana, who is facing trial in FIR registered at Police Station Rajbagh for offences under Sections 8/21, 29 and 27-A of the NDPS Act.

Justice Sanjay Parihar, while granting bail, observed,

“In a criminal prosecution, mere association with an accused cannot substitute the requirement of foundational material demonstrating that the person concerned had knowledge of, and consciously participated in, the alleged unlawful activity.”

The prosecution alleged that police received information that accused Badana and Zaheer Ahmad Tanch were dealing in contraband brought from Karnah to Srinagar. A search of rented premises allegedly led to the recovery of 11 packets containing a heroin-like substance weighing 11 kilograms, besides cash amounting to ₹11,82,500. The investigation alleged that the contraband had been procured from across the border and distributed among other accused persons.

The allegation against Khayal Shafi Badana was that he had conspired with the principal accused and others in procuring and transporting narcotics. The prosecution relied on disclosure statements of co-accused, call detail records showing contact with the principal accused, and certain amounts allegedly credited to the petitioner's bank account as proceeds from the sale of narcotics.

The petitioner argued that the material against him was substantially similar to that relied upon against co-accused Abdul Rashid Kohli, who had already been granted bail by a Coordinate Bench of the High Court. He contended that telephone contact and bank credits, without material establishing their connection with the alleged trafficking, could not independently establish his involvement. The prosecution opposed bail, arguing that the alleged financial transactions distinguished his case from that of the co-accused.

Court's Observations

The High Court noted that no contraband or other incriminating article had been recovered from the petitioner. Although the call detail records indicated regular communication between him and the principal accused, they did not disclose the nature or contents of their conversations.

The Court also took note of the petitioner's explanation that the amount credited to his account related to a loan transaction with his brother-in-law.

The Court held that Section 37 of the NDPS Act does not create an inflexible rule that bail must invariably be refused in cases involving commercial quantities, irrespective of the quality of the material against an accused. The statutory satisfaction must be reached after examining the evidence placed before the Court. It observed that mere presence with a co-accused cannot, without more, establish conscious knowledge of or participation in the alleged criminal activity.

Examining the conspiracy allegation under Section 29 of the NDPS Act, the Court observed that the call detail records did not reveal what had transpired between the petitioner and the principal accused. Nor did the material clearly establish that the money credited to the petitioner's account was directly linked to proceeds from narcotics sales.

The Court observed,

“The seriousness of the offence, however, cannot by itself justify indefinite pre-trial incarceration where the foundational material relied upon to attract the statutory rigour of Section 37 of the NDPS Act is not, at this stage, sufficiently compelling qua the particular accused.”

The Court further noted that the prosecution had not satisfactorily demonstrated any material distinction between the petitioner's alleged role and that of Abdul Rashid Kohli, who had already been granted bail. While observing that parity cannot be applied mechanically, it held that the absence of a substantive distinction was relevant to the exercise of judicial discretion.

Allowing the bail application, the High Court directed the petitioner's release upon furnishing a personal bond of ₹50,000 with two sureties of the like amount, to the satisfaction of the trial court.

The petitioner was directed to attend every hearing unless exempted, not leave the Union Territory of Jammu and Kashmir without prior permission, and refrain from intimidating or influencing prosecution witnesses or tampering with evidence.

Case Title: Khayal Shafi Badana v. Union Territory Through Police Station Rajbagh

Citation: 2026 LiveLaw (JKL)

Appearances:

For the Petitioner: S.T. Hussain, Senior Advocate; Nida Nazir, Advocate

For the Respondents: None

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