Court emphasizes that mere association and call records insufficient to deny bail under Section 37 of NDPS Act; parity with co-accused granted bail also considered
In a significant judgment dated 30th September 2026, the Jammu & Kashmir and Ladakh High Court, Srinagar Bench, presided over by Justice Sanjay Parihar, granted bail to Khayal Shafi Badana, an accused in a narcotic drugs trafficking case involving commercial quantities, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The petitioner was implicated primarily based on disclosure statements of co-accused, call detail records indicating telephonic communication with the principal accused, and allegations of bank credits purportedly linked to proceeds from narcotics sale.
The case arose from FIR No. 17/2023 registered at Police Station Rajbagh concerning the seizure of 11 kilograms of heroin and substantial cash during a raid on 6th April 2023. The principal accused, Sajad Ahmad Badana, was alleged to have procured and sold narcotics, including conspiracy with other accused persons. The petitioner, a close relative of the principal accused, was charged under Sections 8/21, 27A, and 29 of the NDPS Act, mainly on the premise of conspiracy (Section 29) and alleged financial transactions linked to the narcotics proceeds.
The trial court initially rejected the bail application, emphasizing the commercial quantity involved and the stringent bail conditions under Section 37 of the NDPS Act, which prohibits bail unless the Court is satisfied there are reasonable grounds to believe the accused is not guilty. However, the High Court noted that no contraband or incriminating material was recovered from the petitioner's possession. The call detail records only showed frequent contact with the principal accused, without any evidence as to the nature or content of such communication. No voice recordings or transcripts were presented by the prosecution.
Further, the Court observed that the prosecution failed to establish a direct nexus between the amounts credited to the petitioner's bank account and the proceeds of narcotics trafficking. The petitioner contended these transactions were independent commercial dealings, which the Court found plausible given the lack of contrary material. Importantly, the Court relied on the principle of parity, highlighting that a co-accused facing substantially similar allegations had already been granted bail by a Coordinate Bench, and no substantial difference in the petitioner's role had been demonstrated to justify a different treatment.
The Court reiterated that while Section 37 of the NDPS Act imposes a stringent standard for granting bail in commercial quantity cases, it does not mandate an inflexible refusal of bail irrespective of the evidence quality. Mere association or frequent telephonic contact with co-accused does not satisfy the requirement of conscious participation in narcotic trafficking at the bail stage.
Consequently, the High Court directed the release of the petitioner on bail, subject to furnishing a personal bond of Rs. 50,000 with two sureties of the like amount, regular appearance before the trial Court, restrictions on leaving Jammu and Kashmir without permission, and a prohibition on tampering with prosecution witnesses or evidence.
This ruling reinforces the principle that bail decisions in NDPS commercial quantity cases must be grounded in the quality and nature of evidence rather than solely on allegations, and highlights the importance of parity among co-accused.
Bottom Line:
NDPS Act - Bail in commercial quantity case - Mere disclosure statements of co-accused, call detail records showing telephonic contact with principal accused and bank credits, without recovery from accused and without material showing contents of conversations or clear nexus of money with narcotics proceeds, may not be sufficient to deny bail under Section 37 - Parity with similarly placed co-accused already granted bail is a relevant consideration.
Statutory provision(s): Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 8, 21, 27A, 29, 37
Khayal Shafi Badana v. Union Territory, (J&K and Ladakh)(Srinagar) : Law Finder Doc Id # 2995526
