SRINAGAR: The High Court of Jammu Kashmir and Ladakh has granted bail to Khayal Shafi Badana, an accused in a narcotics trafficking case involving the alleged recovery of 11 kilograms of heroin and Rs 11.82 lakh in cash, observing that the prosecution material did not sufficiently establish his conscious involvement in the alleged crime at this stage.
Justice Sanjay Parihar, while allowing Badana’s bail application on September 30, held that no contraband had been recovered from his possession and that the prosecution had relied primarily on disclosure statements of co-accused, call detail records and certain financial transactions to establish his alleged involvement.
The court also noted that a co-accused, Abdul Rashid Kohli, had already been granted bail in the same case by a coordinate bench and that the prosecution had failed to demonstrate a substantial distinction between the roles attributed to the two accused to justify different treatment.
Badana is facing trial in FIR No. 17/2023, registered at Police Station Rajbagh under Sections 8/21, 29 and 27-A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The trial is underway.
The High Court directed his release on bail subject to furnishing a personal bond of Rs 50,000 and two sureties of the like amount to the satisfaction of the trial court.
He has also been directed to attend every hearing unless exempted by the trial court, refrain from leaving Jammu and Kashmir without its prior permission, and not intimidate or influence prosecution witnesses or tamper with evidence.
Prosecution alleges cross-border narcotics trafficking
According to the prosecution, police received information on April 6, 2023, that Sajad Ahmad Badana and Zaheer Ahmad Tanch were allegedly dealing in narcotic substances at Kurshoo Bund in Rajbagh after procuring and transporting the contraband from Karnah to Srinagar for sale.
Acting on the information, a police team searched the rented accommodation occupied by Sajad Ahmad Badana and allegedly recovered 11 polythene packets containing a heroin-like substance concealed beneath a bed. The substance weighed 11 kilograms in total, while cash amounting to Rs 11,82,500 was also recovered from the premises.
Three mobile phones, cash, identity documents and bank cards were among the other articles seized during the investigation. Police subsequently searched vehicles allegedly used in the transportation and distribution of the contraband and seized a digital weighing machine and other material described as incriminating.
The prosecution alleged that the principal accused had disclosed the involvement of several persons in a conspiracy to procure narcotics from a person stated to be based in Pakistan and transport them from Karnah to Srinagar.
According to the allegations, the contraband was carried in a Scorpio vehicle bearing registration number JK01Q-4141, with the substance allegedly concealed in its spare-wheel compartment. A portion of the consignment was subsequently sold to other accused persons travelling in a Tata Tiago bearing registration number JK09B-3619.
The prosecution further alleged that Badana conspired with the principal accused and other co-accused in procuring, possessing and transporting narcotics. It claimed that part of the proceeds from the alleged sale of the contraband was deposited in his bank account.
Court examines call records and bank transactions
Opposing the bail application, the prosecution argued that the case involved the alleged trafficking and sale of a commercial quantity of narcotics and that the restrictions imposed by Section 37 of the NDPS Act prevented the accused from being released unless the statutory conditions were satisfied.
The prosecution maintained that the material collected during the investigation established Badana’s involvement in the alleged racket. It also contended that the case differed from that of Kohli, who had been granted bail, because no money linked to the alleged narcotics transactions had been attributed to Kohli, whereas certain funds had allegedly reached Badana’s bank account.
Badana’s counsel argued that the alleged financial transactions did not, by themselves, establish his involvement in drug trafficking. The defence maintained that the amount credited to his account related to a loan transaction with his brother-in-law and was unconnected with the alleged narcotics trade.
The court noted that Badana had not been arrested alongside the principal accused at the time of the recovery and was subsequently arrested primarily on the basis of disclosures attributed to co-accused.
It also examined the prosecution’s reliance on call detail records showing regular communication between Badana and the principal accused. The judge observed that the two were close relatives and that the records did not disclose the contents of their conversations. No voice recordings or transcripts of the alleged communications had been produced as part of the material relied upon by the prosecution.
The court further noted that the prosecution had relied on a disclosure attributed to another accused, Ghairat Ali Bajad, who allegedly stated that he had procured heroin in conspiracy with Badana. The record also referred to an alleged transfer of Rs 15,000 to the account of the principal accused and Rs 5,000 to Badana’s account.
Investigators had also examined cash amounting to Rs 11,82,500, which was authenticated through various branches of Jammu and Kashmir Bank, and call records allegedly indicating regular contact between Badana and the principal accused.
However, the court observed that the material before it did not clearly establish that the money credited to Badana’s account represented proceeds from the alleged sale of narcotics.
Section 37 restrictions considered
Addressing the statutory restrictions under Section 37 of the NDPS Act, the High Court observed that the provision’s stringent requirements could not be diluted, particularly in cases involving commercial quantities of narcotics.
At the same time, the judge held that the provision did not require bail to be refused irrespective of the quality of the material collected against an accused. The court said the statutory conditions had to be assessed in light of the evidence placed before it.
The order noted that the prosecution’s case against Badana rested principally on alleged disclosures by co-accused, call detail records and financial transactions. In the absence of a recovery from him or material clearly demonstrating his knowledge of and conscious participation in the alleged trafficking, the court found the material insufficiently compelling to justify his continued incarceration at the bail stage.
The judge also observed that mere association with an accused could not replace the requirement for foundational material indicating knowledge of and participation in the alleged unlawful activity.
The court acknowledged the serious consequences of drug trafficking for public health and social order, particularly among young people, but held that the gravity of the allegations alone could not justify indefinite pre-trial detention where the material against the particular accused did not sufficiently support the statutory restrictions on bail.
Finding that Badana had established grounds for bail and was similarly situated to Kohli, the court concluded that denying him bail on substantially similar facts would result in unequal treatment.
The High Court accordingly allowed the petition and directed Badana’s release on the prescribed conditions. The order does not determine his guilt or innocence, and the trial remains pending.
