The has granted bail to Khayal Shafi Badana, an accused in an 11-kilogram heroin trafficking case under the , observing that the absence of any recovery from him, coupled with call detail records that did not reveal the contents of conversations and bank transactions not clearly linked to drug proceeds, weakened the material relied upon by the prosecution to justify his continued incarceration.
Justice Sanjay Parihar, while allowing the bail application filed by Badana, held that the statutory restrictions under cannot be construed as an inflexible proposition that bail must invariably be refused irrespective of the quality of material against the accused.
“In a criminal prosecution, mere association with an accused cannot substitute the requirement of demonstrating that the person concerned had knowledge of, and consciously participated in, the alleged unlawful activity,” the court observed.
The petitioner is facing trial in FIR No.17/2023 registered at Police Station Rajbagh for offences under . According to the prosecution, on , police received information that Sajad Ahmad Badana and Zaheer Ahmad Tanch were dealing in contraband at Kurshoo Bund, Rajbagh. A search of the rented premises occupied by Badana led to the recovery of 11 polythene packets containing a heroin-like substance weighing 11 kilograms in aggregate, besides cash amounting to Rs.11,82,500. The investigation revealed that the contraband had been procured from across the border and transported from Karnah to Srinagar in a Scorpio vehicle, with the drugs concealed in the spare-wheel compartment.
The petitioner, who is related to the principal accused Badana, was not arrested at the time of the recovery but was later implicated based on disclosure statements of co-accused, call detail records showing telephonic contact, and allegations that certain amounts were credited to his bank account as proceeds from the sale of narcotics. The prosecution also relied on the disclosure of co-accused Ghairat Ali Bajad, who claimed that Rs.15,000 was transferred to Badana’s account and Rs.5,000 to the petitioner’s account through net banking.
The court noted that no contraband or other incriminating article was recovered from the petitioner. While the call detail records indicated regular communication between him and the principal accused, they did not reveal the nature or contents of the conversations. The prosecution had not placed any voice recording or transcript before the court.
“Unless there is material indicating what transpired during such telephonic communications, the mere frequency of calls cannot, at this stage, furnish a sufficient basis for concluding that the petitioner was conscious of the fact that the co-accused was engaged in possession or trafficking of narcotic substances,” the court said.
The court also addressed the allegation that certain amounts were credited to the petitioner’s bank account and found that the material did not clearly establish a direct link to the alleged drug trafficking. The petitioner had offered an explanation that the amount related to a personal loan transaction with his brother-in-law.
with Co-Accused
The court further noted that co-accused Abdul Rashid Kohli, against whom substantially similar allegations were made—including that he had accompanied the principal accused and remained connected through call detail records—had already been enlarged on bail by a coordinate bench of the High Court. The prosecution could not demonstrate any material distinction between the roles of the two accused.
“The plea of with Abdul Rashid Kohli was raised before the learned trial court and has been reiterated before this court. The prosecution has not been able to satisfactorily demonstrate any material distinction between the role attributed to the petitioner and that attributed to the aforesaid co-accused so as to justify differential treatment in the matter of bail,” Justice Parihar stated.
Section 37 of Not a Bar
Referring to the under , which require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, the court held that such satisfaction must be arrived at upon consideration of the material placed before it.
“Had there been a recovery from the possession of the petitioner, or material indicating attributable to him, the prosecution could have relied upon such circumstance as a foundation for drawing the available under the regarding knowledge or intent. Mere presence in the company of a co-accused, however, cannot, without something more, lead to a presumption that the petitioner was conscious of, or privy to, the alleged criminal activity,” the court observed.
The court also took into account the seriousness of drug trafficking and its social consequences but ruled that this alone could not justify indefinite pre-trial detention.
“The seriousness of the offence, however, cannot by itself justify indefinite pre-trial incarceration where the relied upon to attract the statutory rigour of is not, at this stage, sufficiently compelling qua the particular accused,” Justice Parihar noted.
Bail Conditions
The court directed the petitioner’s release on bail subject to furnishing a personal bond of Rs.50,000 with two sureties of the like amount to the satisfaction of the trial court. The petitioner must appear before the trial court on every hearing date unless specifically exempted, shall not leave the territorial limits of the Union Territory of Jammu and Kashmir without prior permission, and shall not intimidate or influence prosecution witnesses or tamper with evidence.
The judgment underscores that while Section 37 imposes stringent conditions, courts must assess the quality of evidence against each accused individually. Mere allegations, without , cannot justify continued custody. The case is set for further proceedings before the trial court.
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