The main legal point established in the judgment is that in cases involving commercial quantity of contraband under the NDPS Act, the limitations on granting bail specified in Section 37 of the Act are applicable, and the accused must demonstrate reasonable grounds for believing that they are not guilty of the offence to be granted bail.

1. Vide this common order; I propose to dispose of both the bail applications, one filed by petitioners-Mohd. Shabir and Liaqat Ali and another filed by Mumtaz Ahmed seeking grant of bail under Section 498 Cr.P.C in same FIR.

2. Learned counsel for the petitioners submitted that the petitioners are facing trial in the Court of 1st Additional Sessions Judge, Jammu (with powers of Special Judge under NDPS Act) in the case titled “State of Jammu and Kashmir Versus Farooq Amed and others” under Sections 8/21/22/29 of Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS’) and the same is pending disposal before the Trial Court. According to the prosecution case, the accused, namely, Farooq Ahmed Dar S/o Talib Hussain R/o Mendhar is alleged to have kept narcotic drug (heroin) weighing 250 grams under the mat of the vehicle, which was driven by Mehmood Ahmed S/o Talib Hussain R/o Mendhar, further alleging recovery of Rs. 2,10,000/- (Rupees Two Lac Ten Thousand) from the dash board of the Vehicle bearing No. JK22/7655 (Tata Sumo). The currency notes so seized were alleged to be of Rs. 500 denominations. It is further alleged that out of the other car stated to be of Santro make bearing No. JK01Q/3740 being driven by Ikhlaq Khan was searched and on search, it is alleged that from the dash board of the car, one packet containing 250/300 grams heroin and currency of denomination of Rs. 500/- amounting to Rs. 90,000/- are stated to have been recovered. The petitioners herein, who too have been arrayed as accused are stated to be passengers in Tata Sumo Vehicle bearing No. JK22/7655.

3. It is submitted that another accused, namely, Ikhlaq Khan S/o Mohd. Yaqoob R/o Rajouri is stated to be the driver of the car of above mentioned number and the other accused, namely, Mumtaz Ahmed is stated to be passenger in Santro Car. Interestingly, the driver of Sumo Vehicle, namely, Mehmood Ahmed and the other co-accused, namely, Farooq Ahmed happen to be real brothers and from the facts and circumstances and allegation contained in FIR, the recovery of drug (heroin), in which the petitioners were mere passengers, can be said to have been made from conscious possession of Farooq Ahmed and Mehmood Ahmed both sons of Talib Hussain R/o Mendhar. Though accused, namely, Ikhlaq Khan has been described as driver of Santro Car, the petitioners herein have absolutely nothing to do with the vehicles so intercepted except that they have been shown as passengers travelling in Sumo Vehicle.

4. There is absolutely no evidence relied upon by the prosecution to attribute knowledge of presence of heroin, alleged to have been recovered from the petitioners, as the petitioners have been stated to be mere passengers travelling in the offending vehicle.

5. The Trial Court after presentation of charge-sheet framed charges against all accused including the petitioners without proper application of mind and directed the prosecution to lead evidence, as such after various adjournments sought by the prosecution, only five witnesses have been examined and rest of the witnesses are yet to be examined. During the pendency of charge-sheet, accused persons including the petitioners filed application seeking concession of bail in their favour before this Hon’ble Court. That accused, namely, Farooq Ahmed and Mehmood Ahmed, both sons of Talib Hussain R/o Dhaeri Dabsi Mendhar, District Poonch after facing rejection of bail application by Trial Court, filed an application for bail before this Hon’ble Court and the Hon’ble Court was pleased to grant bail to both the accused vide order dated 28.04.2017. The petitioners namely Mohd. Shabir & Liaqat Ali after getting the knowledge that bail has been granted to the aforesaid two co-accused vide order dated 28.04.2017, they also filed bail application No.67/2017 before this Hon’ble Court, which was disposed of by this Court vide order dated 22.05.2017, leaving it open to the petitioners to approach the Trial Court. The petitione