JUDGMENT : 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 petitioners filed another bail application before the Trial Court. The other accused persons also filed separate applications and all the bail applications have been dismissed by a common order by the Trial Court on 27.06.2017, declining the bail to the petitioners and the other accused in the case. After dismissal of the bail application by the Trial Court, the petitioners have no other option than to approach this Hon’ble Court. 6. The petitioners seek indulgence of this Court, inter alia, on the following grounds:- (A) That a bare perusal of FIR does not make any offence against the petitioners much less the alleged one and that too under NDPS Act, for which, they have been charged by the Trial Court. 6. The petitioners seek indulgence of this Court, inter alia, on the following grounds:- (A) That a bare perusal of FIR does not make any offence against the petitioners much less the alleged one and that too under NDPS Act, for which, they have been charged by the Trial Court. (B) That the prosecution has not brought an iota of evidence on record nor has relied on or collected any evidence, which could prima facie, establish any relation between the petitioners herein and the driver of the vehicle, namely, Mehmood Ahmed and his brother, namely, Farooq Ahmed co-accused, which could have been at least made basis for showing the knowledge of the possession of the contraband alleged to have been seized from Tata Sumo. (C) That Farooq Ahmed and Mehmood Ahmed both sons of Talib Hussain can at the most be attributed the knowledge of contraband seized, whereas the petitioners cannot be alleged of any knowledge of the contraband so possessed by the co-accused, namely, Farooq Ahmed and Mehmood Ahmed. (D) That since Farooq Ahmed and Mehmood Ahmed have been granted bail vide order dated 28.04.2017, as such there was no reason with the Trial Court to reject bail application of the petitioners. The order by virtue of which, bail was granted to Farooq Ahmed and Mehmood Ahmed was cited before the Trial Court Judge, but there is no mention of order passed by this Hon’ble Court, thereby indicating that the Trial Court has not taken note of order of this Court. (E) That in the background of the allegation alleged against the petitioners herein, no prima facie case can be said to have been established for offences under NDPS Act. (F) That bare perusal of Sections 8/21/22/29 of NDPS Act, for which the petitioners falsely stand charged, would show that the allegation as contained in FIR and material collected by investigating agency does not make out a case against the petitioners, as such this application deserves a judicious consideration by this Hon’ble Court. (G) That stringent provisions, which include Section 37 of NDPS Act had a laudable object, i.e., fetters have been imposed on the exercise of discretion vis-à-vis concession of bail, but the fetters so imposed are untrammeled. After all factual and legal position has to be considered so as to ascertain whether curtailment of liberty shall have trappings of reasonableness. (G) That stringent provisions, which include Section 37 of NDPS Act had a laudable object, i.e., fetters have been imposed on the exercise of discretion vis-à-vis concession of bail, but the fetters so imposed are untrammeled. After all factual and legal position has to be considered so as to ascertain whether curtailment of liberty shall have trappings of reasonableness. Indefinite incarceration may amount to punishing the accused before guilt is proved especially in the background of the facts discussed. (H) That the Trial Court has rejected bail application of the petitioners, which goes contrary to the order dated 28.04.2017 passed by the Hon’ble Court, wherein bail has been granted to the co-accused, namely, Farooq Ahmed and Mehmood Ahmed. (I) That presuming for the sake of arguments but not conceding, the allegation levelled in the FIR and the case set up by the prosecution on the basis of material so collected during the investigation to be true, even then the petitioners herein cannot be condemned of having possessed the alleged 250 gram of heroin recovered from Tata Sumo bearing No. JK22/7655 nor any knowledge of presence of such contraband in the Tata Sumo can be attributed to the petitioners by any stretch of imagination. The petitioners have been taken into custody on 17.09.2016 and continued to be in jail for more than nine months now that too in absence of any evidence much less cogent and reliable one. 7. State has filed objections stating that commercial quantity of contrabands has been found from the possession of accused/petitioners; matter is sub-judice before trial court; that petitioners may misuse grant of bail. 8. Heard learned counsel for the petitioners and considered the law on the subject. 9. Section 37 reads as under:- “[37. 7. State has filed objections stating that commercial quantity of contrabands has been found from the possession of accused/petitioners; matter is sub-judice before trial court; that petitioners may misuse grant of bail. 8. Heard learned counsel for the petitioners and considered the law on the subject. 9. Section 37 reads as under:- “[37. Offences to be cognizable and non-bail able;- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail,].” 10. From the perusal of this section, it is evident that no person can be enlarged on bail if he is found in possession of commercial quantity of Narcotics and Psychotropic Substances Act unless court comes to the conclusion that accused is not guilty of offence and prosecution has been given opportunity to oppose the bail application.. 11. From the perusal of file, its appears that the allegations against the petitioners are that on 17.09.2016, police party of Police Station Nowabad Jammu, headed by SI Suresh Sharma, while performing special naka duty at Jewel near St. Peter School Jammu, checked two vehicles i.e. TATA Sumo bearing registration No.JK22-7655 and Santro Car bearing No.JK01-3740 and during checking police recovered and seized 265 grams heroin kept in a green coloured polythene bag and case of Rs.2.10 lac from the TATA Sumo, being boarded by four persons namely Farooq Ahmed Dar and Mehmood Ahmed, sons of Talib Hussain R/o Dheri Dabsi Mendhar, Poonch, Liaqat Ali S/o Mohd. Qasim and Mohd. Shabir S/o Mohd. Sharief, residents of Lanjote Balakot Poonch. Qasim and Mohd. Shabir S/o Mohd. Sharief, residents of Lanjote Balakot Poonch. Police further recovered and seized 253 grams of heroin kept in a white polythene and cash amounting to Rs.90,000/- from two occupants of Santro Car namely Akhlaq Khan S/o Mohd. Yaqoob R/o Kotli Kalaban Manajakote Rajouri and Mumtaz Ahmed S/o Mohd. Showkat R/o Salwah Mendhar Poonch. The accused failed to explain justification/reason for possessing such narcotic substances. They were arrested and a case vide FIR No.130/2016 was registered at Police Station Nowabad against them for the commission of offence punishable under Sections 8/21/22 of NDPS Act. 12. Applicants/accused namely Mohd. Shabir & Liaqat Ali (in B.A. No.118/2017) were found traveling in a TATA sumo no. JK22/7655 on 17.9.2016 along with two more persons; whereas applicant namely Mumtaz Ahmed (in B.A. No.116/2017) was found traveling in Santro Car bearing No.JK01-3740 on 17.9.2016 along with one more person namely Akhlaq Khan 13. Bare perusal of quantities of contraband recovered, it is evident that these are commercial quantity of contraband, because small quantity of heroin is 5 gm and commercial is 250 gm and above 14. Now Petitioners have to show that there are reasonable grounds for believing that accused /applicants are not guilty of such offence. 15. Learned counsel for petitioners while arguing the matter has read over statements of witnesses recorded during course of trial and brought to the knowledge of Court certain contradiction, embellishment and improvement. Now law is clear that detail appreciation of evidence cannot be done at the time of considering the bail in heinous offence. It is not a case that there is nothing incriminating spoken by witnesses examined so far. The certain contradiction, embellishment and improvement, which have been brought to the knowledge of Court, may be good grounds for acquittal, but not for granting bail. Further in case at this stage any finding is given on contradiction, embellishment and improvement of witnesses made during trial that may prejudice Court below in passing final judgment. 16. The argument of counsel for petitioners that two co accused have been granted bail by High Court on 28.4.2017 in this FIR, is not tenable because from perusal of order, it reveals that court while granting bail has held that 65 gm of heroine was recovered. 16. The argument of counsel for petitioners that two co accused have been granted bail by High Court on 28.4.2017 in this FIR, is not tenable because from perusal of order, it reveals that court while granting bail has held that 65 gm of heroine was recovered. The true fact was not brought to knowledge of Court by prosecution or counsel for petitioners that quantity recovered was 265 gm and not 65gm. 17. From the above discussion I don’t find any reason to believe that there are reasonable grounds for believing that accused/applicants are not guilty of such offence for which they have been charged. 18. Hence, both these bail applications are dismissed. Copy be placed in each file.