Jammu & Kashmir High Court
Umar Riyaz vs Union Territory Of J&K on 23 July, 2025
=h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No.167/2024
Umar Riyaz ...Petitioner(s)
Through:- Mr. Anmol Sharma, Advocate
V/s
Union Territory of J&K ...Respondent(s)
Through:- Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI,
JUDGE
JUDGMENT
1. This is an application by the petitioner under Section 439 of
the Code of Criminal Procedure, 1973 seeking his enlargement on bail in
case FIR No.0177/2018 under Section 8/15/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 [“the Act”] registered with Police
Station, Bahu Fort, Jammu. Prior to approaching this Court, the petitioner
had moved a similar application before the Principal Sessions Judge,
Jammu [hereinafter referred to as the “Trial Court”] where the trial
against the petitioner is pending adjudication. The trial Court after
appreciating the rival contentions did not find it a fit case to enlarge the
petitioner on bail pending trial and as a result, rejected the application for
bail filed by the petitioner vide its order dated 4th May, 2024
2 Bail App No.167/2024
2. Being dissatisfied and aggrieved by the order dated 4 th May, 2024
passed by the trial Court, the petitioner has filed the instant petition
seeking indulgence of this Court to grant him bail in the aforementioned
case.
3. The petitioner seeks his enlargement on bail primarily on the
ground of prolonged incarceration.
4. The respondents have filed reply, in which it is stated that 12
bags of poppy straw (4 quintal in weight) was recovered on the search of
the truck being driven by the petitioner when stopped by the naka party at
Sunjwan Morh NHW on his way towards Channi. After detailed
investigation, charge-sheet was laid before the trial Court on 01.10.2018.
It is stated that recovery of such a large scale of narcotics disentitles the
petitioner from seeking bail on the ground of alleged long incarceration.
It is stated that owing to past conduct of the petitioner, when he was
granted interim bail during Covid-19 pandemic and his subsequent
declaration as absconder by the trial Court and procurement of his
custody after three long years, disentitles him to seek concession of bail
on any ground whatsoever.
5. Heard learned counsel for the parties and perused the material
available on record.
6. It appears that initially the petitioner had approached the learned
Trial Court for grant of bail but his attempt had failed, as his application
3 Bail App No.167/2024
was rejected vide order dated 4th May, 2024 passed by the Trial Court,
copy whereof is on the record of the file.
7. As per the prosecution, 12 bags of poppy straw (406 kg), loaded in
plastic and jute bags and kept in the truck loaded with fruit, was
recovered when stopped by the naka party at Sunjwan Morh NHW on his
way towards Channi. After conducting the investigation, charge-sheet
was filed before the learned Trial Court on 01.10.2018. It appears that the
charge against the petitioner under Section 8/15/29 NDPS Act stands
framed against the accused including the petitioner herein and trial of the
case is going on. It has come on record that till date nine prosecution
witnesses have been examined before the Trial Court.
8. Contraband allegedly recovered from the vehicle driven by the
petitioner involves about four quintals of poppy straw, which falls within
the definition of commercial quantity, as such, rigors of Section 37 are
attracted in the present case. It is unequivocally established that, to be
granted bail, the accused charged with offence under the NDPS Act must
fulfill the conditions stipulated in Section 37 of the NDPS Act. Section
37 of the NDPS Act reads as under:
“37. Offences to be cognizable and non-bailable.–
(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 27-A and also for
4 Bail App No.167/2024offences 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 oppose 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.”
9. The Supreme Court in the case of Rabi Prakash v. State of
Odisha 2023 SCC OnLine SC 1109, while granting bail to the petitioner
therein has held as under:
“4. As regard to the twin conditions contained in Section 37 of the
NDPS Act, learned counsel for the respondent – State has been duly
heard. Thus, the 1st condition stands complied with. So far as the 2nd
condition re: formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the same may not be
formed at this stage when he has already spent more than three and a
half years in custody. The prolonged incarceration, generally militates
against the most precious fundamental right guaranteed under Article
21 of the Constitution and in such a situation, the conditional liberty
must override the statutory embargo created under Section
37(1)(b)(ii) of the NDPS Act.”
10. The Supreme Court in the case of Mohd. Muslim @ State (NCT
of Delhi, AIR 2023 SC 1648 has held that :
“23. There is a further danger of the prisoner turning to crime, “as crime not
only turns admirable, but the more professional the crime, more honour is
paid to the criminal”22 (also see Donald Clemmer‟s „The Prison
Community‟ 20 National Crime Records Bureau, Prison Statistics in India
https://ncrb.gov.in/sites/default/files/PSI- 2021/Executive_ncrb_Summary-
2021.pdf 21 1993 Cri LJ 3242 22 Working Papers – Group on Prisons &
5 Bail App No.167/2024Borstals – 1966 U.K. published in 194023). Incarceration has further
deleterious effects – where the accused belongs to the weakest economic
strata: immediate loss of livelihood, and in several cases, scattering of
families as well as loss of family bonds and alienation from society. The
courts therefore, have to be sensitive to these aspects (because in the event of
an acquittal, the loss to the accused is irreparable), and ensure that trials –
especially in cases, where special laws enact stringent provisions, are taken
up and concluded speedily.”
11. A three-Judge Bench of the Supreme Court in case of Union of
India v. K.A.Najeeb, (2021) 3 SCC 713 had considered the issue of long
incarceration and the effect of Section 43-D(5) of the UAP Act and
observed thus:-
“It is thus clear to us that the presence of statutory restrictions like
Section 43D (5) of UAPA per se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a Statue as well as
the powers exercisable under Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of proceedings, Courts are
expected to appreciate the legislative policy against grant of bail but
the rigours of such provisions will melt down where there is no
likelihood of trial being completed within a reasonable time and the
period of incarceration already undergone has exceeded a substantial
part of the prescribed sentence. Such an approach would safeguard
against the possibility of provisions like Section 43D (5) of UAPA
being used as the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
12. The Supreme Court in the case of Satender Kumar Antil v.
Central Bureau of Investigation, (2022) 10 SCC 51, expressed the
opinion that Section 436A of the Code of Criminal Procedure, which
requires inter alia the accused to be enlarged on bail if the trial is not
6 Bail App No.167/2024
concluded within specified period, would apply. The relevant portion of
the judgment is extracted as under:-
“We do not wish to deal with individual enactments as each special
Act has got an objective behind it, followed by the rigor imposed. The
general principle governing delay would apply to these categories also.
To make it clear, the provision contained in Section 436A of the Code
would apply to the Special Acts also in the absence of any specific
provision. For example, the rigor as provided under Section 37 of the
NDPS Act would not come in the way in such a case as we are dealing
with the liberty of a person. We do feel that more the rigor, the quicker
the adjudication ought to be. After all, in these types of cases number
of witnesses would be very less and there may not be any justification
for prolonging the trial. Perhaps there is a need to comply with the
directions of this Court to expedite the process and also a stricter
compliance of Section 309 of the Code.”
13. From the aforementioned judicial pronouncements, it becomes
manifest that the right to a speedy trial is a fundamental right under
Article 21 of the Constitution. Prolonged incarceration not only
undermines this right but also the presumption of innocence. While the
seriousness of the offence is a pertinent consideration, the delay in the
trial cannot be overlooked. The State has not provided satisfactory
reasons for the inordinate delay. The applicant has a constitutional right
to a speedy trial, and the prolonged delay infringes upon this right. The
prolonged incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the Constitution and in
such a situation, the conditional liberty must override the statutory
embargo created under special enactments.
7 Bail App No.167/2024
14 In the present case, the petitioner was first taken into custody
on 06.07.2018 and remained in custody till 03.02.2020, when he was
released on interim bail. Thereafter, he failed to appear before the Trial
Court and was declared an absconder. He was re-arrested on 17.12.2022
and has remained in custody since then. Out of fifteen witnesses, only
nine have been examined so far. Although the offence is serious and the
petitioner has prior criminal history, these factors alone cannot justify
indefinite incarceration. The petitioner is a driver by profession and
belongs to the economically weaker section. His prolonged incarceration
affects his right to livelihood, family integrity, and societal reintegration.
Further, the explanation submitted by the petitioner that he could not
surrender before the trial Court due to the lockdown imposed during the
COVID-19 pandemic cannot be lost sight of.a
15. The Supreme Court in the case of Javed Gulam Nabi Shaikh v.
State of Maharashtra and another, 2024 INSC 645 has held that:
“19. If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect the fundamental
right of an accused to have a speedy trial as enshrined under Article 21
of the Constitution then the State or any other prosecuting agency
should not oppose the plea of bail on the ground that the crime
committed is serious. Article 21 of the Constitution applies irrespective
of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not
a convict. The over-arching postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven guilty cannot be
brushed aside lightly, howsoever stringent the penal law may be.”
8 Bail App No.167/2024
16. In the case of Legal Aid Committee (Representing Under trial
Prisoners) v. Union of India, (1994) 6 SCC 731, it was held that
undrtrials cannot indefinitely be detained pending trial. Ideally, no person
ought to suffer adverse consequences of his acts unless the same is
established before a neutral arbiter. However, owing to the practicalities
of real life where to secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large pending trial, the courts
are tasked with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial would not be
possible and the accused has suffered incarceration for a significant
period of time, the courts would ordinarily be obligated to enlarge them
on bail.
17 From the above judicial pronouncements, it is evident that
the right to a speedy trial is an essential facet of Article 21 of the
Constitution. While the gravity of the offence remains relevant, it cannot
be the sole ground to deny bail where the trial is unduly delayed without
satisfactory justification. In the present case, as noted earlier, the
petitioner has undergone approximately four and a half years of custody.
Though the petitioner did abscond after being released on interim bail,
this can be addressed by imposing stringent conditions.
18 Having regard to the cumulative period of incarceration,
delay in trial, and in light of the authoritative pronouncements noted
above, this Court is of the opinion that the petitioner is entitled to be
9 Bail App No.167/2024
released on bail, subject to stringent conditions to ensure his presence
during trial and prevent misuse of liberty. Accordingly, the petition is
allowed and the petitioner is directed to be released on bail in case FIR
No. 0177/2018 registered at Police Station, Bahu Fort, Jammu, subject to
the following conditions:
(i) The petitioner shall furnish a personal bond to the tune of
Rs. 1,00,000/- with two sureties of the like amount, to the
satisfaction of the trial Court;
(ii). The petitioner shall not leave the territorial jurisdiction of the
trial Court without its prior permission;
(iii). The petitioner shall appear before the trial Court on each
date of hearing without fail;
(iv). The petitioner shall not directly or indirectly influence or
intimidate any prosecution witness;
(v). The petitioner shall not commit any offence during the period
of bail;
(vi). The petitioner shall report to the concerned police station
once a week until further orders;
(vii). Any violation of the above conditions shall entitle the
prosecution to seek cancellation of bail.
Disposed of accordingly.
(Moksha Khajuria Kazmi)
Judge
JAMMU.
23 .07.2025
Whether the order is speaking : Yes/No
Whether the order is reportable: Yes/No