J&K High Court Grants Bail in NDPS Case, Cites Prosecution's Failure to Test All Seized Bottles

Srinagar, J&K – The High Court of Jammu & Kashmir and Ladakh, in a significant ruling on the stringent bail conditions under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, has granted bail to an accused after observing that the prosecution’s failure to analyze all seized contraband bottles created reasonable grounds to believe he was not guilty of possessing a commercial quantity.

The bench, led by Hon’ble Mr. Justice Sanjay Dhar , allowed the bail application of Javaid Ahmad Bhat, who was arrested for allegedly possessing 11 bottles of Omrex-T cough syrup containing Codeine Phosphate. The court underscored that when only one of several seized items is sent for forensic analysis, it cannot be presumed that the rest also contain contraband unless their representative nature is established, for instance, through a common batch number.

---

Background of the Case

The case originates from FIR No. 58/2024, registered at Police Station, Srigufwara. The prosecution alleged that on July 14, 2024, police apprehended Javaid Ahmad Bhat and recovered 11 bottles of Omrex-T (100 ml each) from the bonnet of his vehicle. A sample from one bottle was sent to the Forensic Science Laboratory (FSL), which confirmed the presence of Codeine Phosphate. Consequently, Bhat was charged under Section 8/21 of the NDPS Act for possessing a commercial quantity of the substance.

A lower court, the Special Judge (NDPS Cases) in Anantnag, had previously rejected his bail application on the grounds that he was prima facie involved in an offence involving a commercial quantity, thereby attracting the strict bail conditions of Section 37 of the NDPS Act.

---

Arguments Before the High Court

Petitioner's Counsel, Mr. Wajid Mohammad Haseeb, argued:

* Only one of the 11 seized bottles was sent for chemical analysis.

* There is no evidence to prove that the remaining 10 bottles contained Codeine Phosphate.

* Therefore, the petitioner can, at best, be accused of possessing an intermediate or small quantity, which does not attract the rigorous conditions of Section 37 of the NDPS Act.

* The evidence recorded so far in the trial did not conclusively establish guilt for possession of a commercial quantity.

Respondent's Counsel, Mr. Ilyas Nazir Laway, contended:

* It was not necessary to send all 11 bottles for analysis, as the sample taken was representative of the entire seizure.

* The offence is heinous and against the larger public interest, warranting the denial of bail.

* The petitioner was involved in a grave offence, and a balance must be struck between individual liberty and public interest.

---

Court's Reasoning and Legal Principles Applied

Justice Sanjay Dhar, while acknowledging the stringent nature of Section 37 of the NDPS Act, conducted a prima facie review of the evidence to determine if there were "reasonable grounds" to believe the accused was not guilty of possessing a commercial quantity .

The court's decision hinged on the concept of a "representative sample." It noted a critical lapse in the investigation:

> "In the seizure memo, the batch number and the nature of solution contained in the recovered bottles is not mentioned. Had it been a case where 11 bottles recovered from the possession of the petitioner pertained to same batch, one could have inferred that the sample sealed by the Investigating Agency and sent to the FSL... is representative sample... But such is not the case as there is no material on record to suggest that the recovered bottles were bearing the same batch number."

The court distinguished the present case from the Supreme Court's judgment in Vijendrajit Ayodhya Prasad Goel vs. State of Bombay , where there was evidence that all recovered bottles contained the same material. In this instance, the lack of such evidence was fatal to the prosecution's claim of commercial quantity at the bail stage.

The judgment emphasized that without an FSL report for the other 10 bottles or proof of a common batch number, there were reasonable grounds to believe the petitioner was not guilty of possessing a commercial quantity.

---

Final Decision and Implications

Based on this reasoning, the High Court concluded that the petitioner had successfully made a prima facie case for bail. The court also noted that Bhat had been in custody for over a year and had no prior criminal history related to drug offences.

The court allowed the petition and granted bail to Javaid Ahmad Bhat, subject to furnishing a personal bond of Rs. 50,000 with two sureties and other conditions, including appearing at all trial dates and not leaving the Union Territory without permission.

This judgment serves as a crucial reminder for investigating agencies on the procedural importance of establishing the representative nature of samples in NDPS cases, particularly when seeking to invoke the stringent bail provisions for commercial quantities.