1. Petitioner has invoked the jurisdiction of this Court under Section 483 of Bhartiya Nagarik Suraksha Sanhita (BNSS) for his enlargement on bail in FIR No. 12/2021 dated 24.09.2021 under Section 8/15 of NDPS Act, and challan titled “U.T. of J&K Vs. Mushtaq Ahmed Rather” pending disposal before the Court of Special Judge (NDPS cases), Jammu [the trial Court].

2. Facts in brief relevant for the purpose of present bail application are that on 24.09.2021, an information came to be received at Police Station, ANTF, Jammu that petitioner, Mushtaq Ahmed Rather had concealed huge quantity of poppy straw under the apple boxes in the truck bearing registration No. JK02AG-8035 being driven from Kashmir valley towards Punjab. Accordingly, on receipt of this information, a case being FIR No. 12/2021 under Section 8/15 of NDPS Act registered and investigation entrusted to Inspector, Sanjeet Sharma. The prosecution story further proceeds on the premise that the posse of ANTF along with Executive Magistrate, Mohd. Saleem said to have laid a Naka at Purmandal Morh, who were further joined by officials of legal metrological department/photographer/ videographer of the Crime Branch and Dog squad.

3. However, the truck in question being driven by the petitioner spotted coming from Kunjwani Chowk towards Samba, when signalled it was stopped, and petitioner was taken in custody. When truck was searched in the presence of Magistrate, 13 plastic bags containing poppy straw weighing 208 kgs and 200 gms concealed under Apple boxes have been recovered and thereafter necessary codal formalities were completed and on the basis of material collected during investigation, the commission of offence under Section 8/15 established. Accordingly, challan was presented against the petitioner before the trial Court.

4. Be it noted that the petitioner has moved an application seeking bail before the trial Court, however, same was dismissed vide order dated 05.06.2025, in view of rigor of Section 37 of the NDPS Act, since huge commercial quantity of 13 bags total weighing 208 kgs and 200 gms recovered, coupled with the fact that from the evidence of the witnesses recorded so far, the trial Court observed that there is no reasonable ground to believe that petitioner is not guilty of the offence for which he stand charge sheeted. Therefore, application came to be dismissed.

5. Now by virtue of instant petition, the petitioner is seeking bail mainly on the ground that prosecution has examined 8 witnesses, including material, witnesses, but there are material contradictions, and also witnesses did not support the prosecution case.

6. The further contention of the petitioner is that there are also contradictions in the testimonies of PW-7 and PW-13, one of whom is the eye witness so much so the presence of the Magistrate is also doubtful.

7. Besides, the above ground taken in the memo of petition, learned counsel appearing for the petitioner during the course of submissions restricted his arguments only on delay of trial and continued incarceration of the petitioner, therefore, prays for grant of bail in view of mandate of Article 21 of the Constitution of India.

8. On the other hand, the respondent has filed the objections and opposed the bail application on the ground that rigor of Section 37 of the NDPS Act applies to the case on hand and there is no prima facie case made out to show that the petitioner has not committed the alleged offence. Therefore, keeping in view the involvement of the petitioner in a heinous offence, he does not deserve concession of bail at this stage. The respondent has also given the detail of prosecution case and societal impact of the alleged offence, while opposing the bail application.

9. Heard and considered. Perused the record.

10. Formal charges against the petitioner for commission of offence under Section 8/15 of the NDPS Act were framed for recovery of commercial quantity of poppy straw, which was recovered from the conscious possession of the petitioner, while transporting the same in a truck bearing registration No. JK02AG-8035 and from the record it appears that till 12.08.2025, the prosecution has recorded 7 witnesses, including the Magistrate who was stated to be present at the time of search of truck and recovery of poppy straw. The Executive Magistrate is cited as PW-13 in the challan, who deposed that in his presence the search of truck was conducted and during the search, narcotics contained in 13 bags recovered and samples were drawn on the spot. Prima facie, rest of the prosecution witnesses recorded so far have also supported the search and recovery of the alleged commercial quantity of poppy straw.

11. The Court is conscious of the fact that while dealing with the bail application, it is only required to record a finding on the basis of broad probabilities regarding involvement of the accused in the commission of stated offence or otherwise and the Court is not required to record a finding based on proof beyond doubt or return an opinion on the probative value of the evidence of the witnesses which may be in progress.

12. In Narcotics Control Bureau Verus Kashif 2025(2) Supreme 268 Hon’ble Supreme Court while dealing with the compliance of the mandate under Section 37 of the NDPS Act observed that where the offence is punishable with minimum sentence of 10 years, the accused shall generally be not released on bail and in this regard “Negation of bail is the rule and its grant is an exception.” It has been further held while considering the application for bail, the Court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. However, the recording of finding as mandated in Section 37 is sine qua non for granting bail to the accused involved in the offence under the said Act. Similar view has been taken by Hon’ble Supreme Court in State of Meghalaya Versus Lalrintluanga Sailo & Anr. 2024 (6) Supreme 568.

13. The Hon’ble Supreme Court in Union of India Versus Vigin K. Varghese 2025 SCC online (SC) 2440, observed thus:-

                     “17. The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1) (b) (ii) which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution’s assertions of operative control and antecedent involvement, risks trenching upon appreciation of evidence which would be in the domain of trial Court at first instance.”

14. From the above stated dictum of law it is pellucid that Section 37 of NDPS Act is mandatory and when same is pitted against the plea of prolonged incarceration and likely delay of the trial, the conditions contained in Section 37 of NDPS, have the precedence.

15. In the case on hand, the prosecution witnesses recorded so far, including the Magistrate have prima facie supported the search, seizure and recovery of poppy straw, and thus embargo under Section 37 of the NDPS Act applies with full force.

16. Neither from the grounds taken in the petition nor during the course of arguments, the petitioner could make out a case that either from the testimonies of recorded witnesses or the material collected during investigation, no prima facie involvement of the petitioner is made out. However, all along petitioner has made wholesale assertions without specifically stating that on the basis of material on record or from the evidence of witnesses recorded so far there are reasonable grounds for believing that petitioner is not guilty of the offence.

17. It is trite that at the bail stage, Courts are precluded from undertaking a detailed examination of evidence or rendering findings that touch upon the merits of the case. Only a prima facie assessment of the material is warranted. The Court cannot conduct a mini trial or record conclusion that could influence the outcome of the trial. In support of this proposition reference can be made to the recent judgment of Hon’ble Supreme Court passed in State of Karnataka Versus Sri Darshan Etc 2025 INSC 979. 18. Therefore, in view of the mandatory provision of Section 37 of NDPS Act and material available on record so far, no ground is made out for enlargement of the petitioner on bail at this stage.

19. For the aforementioned reasons, the bail plea of the petitioner is found without merit, accordingly, the petition is dismissed.

20. However, it is made clear that the observations made in this order are limited to the adjudication of the present bail application and shall not prejudice the merits of the case during trial.