Jammu & Kashmir High Court
High Court Of Jammu & Kashmir And Ladakh vs Ut Of J&K on 30 July, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
2025:JKLHC-JMU:2004
AT JAMMU
Bail App No. 204/2024
Reserved on: 21.07.2025
Pronounced on: 30.07.2025
Arif Ahmed .....Appellant(s)
q
Through: Mr. Rohit Verma, Advocate.
vs
UT of J&K ..... Respondent(s)
Through: Mr. Vishal Bharti, Dy. AG.
CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
01. The applicant being aggrieved of denial of his bail plea by the Court of
learned Additional Sessions Judge, Samba [“the trial Court”], has approached this
Court for emancipation, pre-dominantly on the ground of procrastination of trial
and his prolonged incarceration.
02. According to the applicant, the trial Court has dismissed his application for
bail without assigning any reasons therefor, except for taking recourse to Section
37 of the NDPS Act. It is contention of the applicant that prosecution having
examined only a couple of witnesses in a trial that has continued for almost 2½
years brings the present case out of the purview of Section 37 of NDPS Act.
03. Another plea taken by the applicant is that, even from a bare perusal of the
statements of witnesses examined so far by the prosecution in the trial Court,
there are no reasonable grounds for presuming that he is in any way involved in
the allegations levelled against him. It is further contended that learned trial court
2 Bail App No. 204/2024
2025:JKLHC-JMU:2004
has passed the rejection order without assessment of the factual background in its
proper perspective. The applicant submits that he is the sole bread winner of the
family, has clean antecedents and cannot be treated as hardened criminal. He
undertakes to co-operate in the trial, in the event of his release on bail.
04. The plea has been opposed on the other side by the respondent UT,
primarily on the ground that a huge quantity of 595 kgs of poppy straw came to be
recovered from the applicant and material witnesses of the prosecution are yet to
be examined.
05. As factual narration of the case would unfurl, on 12.09.2021, at around
1430 hours, the police party of PP, Mansar, deputed for the Naka, intercepted a
truck bearing registration No. JK03C-9848 on its way from Udhampur to Samba.
On checking, 26 plastic bags containing poppy straw-like substance, weighing
approximately 20-25 kgs each bag, came to be recovered. The driver and
conductor of the truck failed to provide sufficient explanation for transportation of
such a huge quantity of the contraband. The applicant was driving the truck,
whereas the conductor discloses his name as Shabbir Ahmed. As per the
investigating agency, they were indulged in sale/purchase of poppy straw and had
committed offences under Sections 8/15 of the NDPS Act. Information was sent
to the concerned police post, whereupon FIR No. 282/2021 for offences under
Sections 8/15/29 of the NDPS Act came to be registered against the applicant and
co-accused. The investigating officer reached the spot and conducted the legal
formalities including the seizure and sealing of the contraband and forwarding of
3 Bail App No. 204/2024
2025:JKLHC-JMU:2004
sample to the Forensic Science Laboratory for examination. The investigating
officer also weighed 26 plastic bags allegedly containing the poppy straw-like
substance and it revealed that there was 595 kgs of poppy straw in said gunny
bags, out of which samples weighing 200 gms each were drawn for chemical
analysis/expert opinion from FSL, Jammu. CDRs, CAF and tower location of
mobile numbers of accused persons were also obtained and in this respect a
certificate under Section 65-B of Indian Evidence Act was also obtained. On the
basis of the Call Detail Records and tower locations, the investigating officer
went to Kashmir to unearth the involvement of any other accused in this case and
obtained the custody of accused namely Irfan Rasheed Rather, who, as per the
investigating agency, was part of the criminal conspiracy.
06. It also surfaced during investigation, after the CDRs/CAFs and tower
location of the mobile phones were analysed, that applicant was in constant
calling touch with co-accused Amir Bhat and Irfan Rasheed Rather for the past
three months and they were found at the same location during the time of loading
of the aforesaid vehicle. The investigating officer obtained FSL report and as per
the FSL report, morphine was detected in the exhibit which was identified as
poppy straw (Plant material of Papaver somniferum).
07. The investigating agency came to the conclusion that on 08.09.2021, co-
accused namely Irfan Rashid Rather, owner of the aforesaid truck, loaded 595 Kg
of poppy straw in his truck with the assistance of the applicant and co-accused
Shabbir Ahmed. The loaded truck was then handed over to the applicant and co-
4 Bail App No. 204/2024
2025:JKLHC-JMU:2004
driver Shabbir Ahmed for the transportation of the contraband to Punjab. On
12.09.2021, the driver and the co-driver were apprehended at Mansar Naka along
with the aforesaid contraband of 595 kg of poppy straw. It surfaced that on that
particular day also the applicant and co-accused Irfan were in constant touch.
Therefore, as per the investigating agency, offences under Sections 8/15/29 of the
NDPS Act were established against the applicant and the co-accused and the
investigation culminated in the presentation of charge-sheet against them in the
trial Court on 04.03.2022.
08. Having heard learned counsels for the parties, I have carefully gone through
the trial Court record.
09. Learned counsel for the applicant has relied upon Gopal Krishna Patra @
Gopalrusma vs. Union of India [Criminal Appeal No. 1169/2022 dated
05.08.2022], Chitta Biswas Alias Subhas vs. The State of West Bengal
[Criminal Appeal No(s). 245/2020 dated 07.02.2020], Abdul Majeed Lone vs.
Union Territory of Jammu and Kashmir [SLP (Crl.) No. 3961/2022 dated
01.08.2022], Nitish Adhikary @ Bapan vs. The State of West Bengal [SLP
(Crl.) No. 5769/2022 dated 01.08.2022], Mahmood Kurdeya v. Narcotics
Control Bureuau [Criminal Appeal No. 1570/2021 dated 07.12.2021] and
Mohd. Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 to
reiterate the grounds urged in the application.
10. On the other hand, learned Dy. AG has reiterated the sand taken of
respondent-UT in the objections.
5 Bail App No. 204/2024
2025:JKLHC-JMU:2004
11. It goes without saying that delay in trial, by itself, constitutes denial of
justice and any such delay on the part of the trial Court or the prosecution, as the
case may be, amounts to violative of Article 21 of the Constitution of India.
However, if the trial Court record is carefully glanced over, what comes to the
fore is that it is not the trial Court or the prosecution alone who can be held
responsible to cause delay but applicant and co-accused are equally responsible.
12. A perusal of the trial Court record reveals that charge-sheet came to be filed
on 04.03.2022, whereafter, the accused persons, including the applicant, sought
numerous opportunities to engage their respective counsels and eventually on
17.12.2022 i.e., after a gap of more than nine months, counsels for all the accused
persons appeared and sought time for arguments on charge/discharge. They
concluded their arguments on 28.01.2023 and on the same date, accused came to
be charged by the trial Court. Since accused were lodged in the district jails and
were being produced in the trial Court via virtual mode, charge-sheets were sent
to the concerned jails for their signatures. It is pertinent to mention that one of the
accused namely Irfan Rasheed Rather, refused to sign the charge in the jail. He
was produced in custody in the trial Court on 27.05.2023, where charge was read
over to him, whereby he pleaded not guilty and claimed to be tried and put his
signatures on the charge sheet.
13. It is evident from the aforesaid sequence of events that it took more than a
year for counsels for the accused persons, including the applicant, to conclude
their arguments on charge/discharge and the trial, in effect, commenced only on
6 Bail App No. 204/2024
2025:JKLHC-JMU:2004
27.05.2023. Even thereafter, the accused persons, including the applicant,
changed their counsels and this pattern continued till 06.01.2024, on which date,
Mr. G. M. Dar, Advocate, filed power of attorney on behalf of the applicant
accused and Mr. Ashok Sharma, Advocate filed power of attorney on behalf of
accused No. 2 and on the same date, PW-1, ASI Harnam Singh came to be
examined and his statement was deferred for cross examination by learned
counsels for accused No. 2 & 3. However, it is pertinent, to note that on
04.05.2024, after more than four months, learned counsel for accused No. 2 & 3
made a statement in the trial Court that he did not want to cross-examine PW
Harnam Singh.
14. The trial Court record also bears testimony to the fact that on various
occasions, statements of prosecution witnesses could not be examined due to the
absence of one counsel or the other. However, learned trial Court issued notices
and warrants to enforce the presence of prosecution witnesses.
15. True it is, that right to speedy trial is a fundamental right and no person can
be deprived of his liberty except in accordance with the procedure established by
law, under Article 21 of the Constitution of India. The right to speedy trial and the
presumption of innocence are, no doubt, crucial considerations in granting bail.
However, it is equally trite that it is not an absolute or automatic ground for
enlargement on bail and Court is obliged to consider the totality of circumstances
which caused delay in conclusion of the trial.
7 Bail App No. 204/2024
2025:JKLHC-JMU:2004
16. I am fortified in my opinion by Dipak Shubhashchandra Mehta v. C.B.I.
& Anr.; AIR 2012 SC 949 whereby Hon‟ble Supreme Court while recognising
the right of accused to be released on bail, in cases of delay in trial, has clarified
that this principle cannot be mechanically applied to all cases.
Relevant excerpt of the judgment reads as below:-
“17. This Court has taken the view that when there is a delay in the trial,
bail should be granted to the accused. [Vide Babba vs. State of
Maharashtra, (2005) 11 SCC 569, Vivek Kumar vs. State of U.P., (2000)
9 SCC 443.2]: (AIR 2000 SC 3406 But the same should not be applied to
all cases mechanically.”
17. A similar view has been taken in State of Bihar and another v. Amit
Kumar alias Bacha Rai; AIR 2017 SC 2487, [“Amit Kumar”] whereby the
Apex Court cancelled the bail granted by the High Court merely on the ground of
prolonged custody of the accused. Pertinently, it was held by the Apex Court that
when seriousness of the offence is such, prolonged incarceration of the accused
should not be the concern of the Courts.
Relevant observation contained in para 9 of the judgment runs as below:-
“9. A bare reading of the order impugned discloses that the High Court has
not given any reasoning while granting bail. In a mechanical way, the High
Court granted bail more on the fact that the accused is already in custody
for a long time. When the seriousness of the offence is such mere fact that
he was in jail for however long time should not be the concern of the
Courts”
18. An identical view has been expressed in Kalyan Chandra Sarkar v.
Rajesh Ranjan alias Pappu Yadav and another; AIR 2004 Supreme Court
1866 whereby Hon‟ble Supreme Court refused to release the accused on bail, who
8 Bail App No. 204/2024
2025:JKLHC-JMU:2004
was involved in serious offence and had already undergone a period of
incarceration of three years:-
“14. …………In such cases, in our opinion, the mere fact that the accused has
undergone certain period of incarceration (three years in this case) by itself
would not entitle the accused to being enlarged on bail, nor the fact that
the trial is not likely to be concluded in the near future either by itself or
coupled with the period of incarceration would be sufficient for enlarging
the appellant on bail when the gravity of the offence alleged is severe and
there are allegations of tampering with the witnesses by the accused during
the period he was on bail.”
19. In the aforesaid background, the case law relied by learned counsel for
the petitioner is distinguishable on facts and circumstances obtaining the
present case.
20. It is evident from the chronology of events adumbrated in the
preceding paras that neither the trial Court nor the prosecution alone, can be
held responsible for the delayed trial but the petitioner and co-accused were
equally responsible to contribute to cause delay in the conclusion of trial. Be
it noted that a huge consignment of 595 kgs of Poppy Straw came to be
recovered from the vehicle, the petitioner at the relevant time was found
driving and transporting to the neighbouring State of Punjab. In the
circumstances, as held by the Apex Court, in Amit Kumar and Kalyan
Chandra Sarkar, mere fact that petitioner has undergone a certain period of
incarceration, by itself would not entitle him to be enlarged on bail.
21. No doubt, the length of custody and likelihood of the trial delay can be key
factors in granting bail to an accused regardless of the seriousness of the charge,
but it is not an absolute right and Court has to take various factors into
9 Bail App No. 204/2024
2025:JKLHC-JMU:2004
consideration including the role played by the accused and assistance rendered by
him to ensure speedy trial. Where an accused equally contributes in the
procrastinated trial and shares the responsibility for delay, alongside the
prosecution and the court system, by requesting unnecessary adjournments,
frequent change of counsels and not appearing in the court on scheduled hearings
for examination of the witnesses, present in the court, the plea of bail on the
ground of protracted incarceration, is not available to him.
22. For the foregoing reasons, the present application, being devoid of merit, is
dismissed. However, learned trial Court is requested to conclude the trial with
expedition, by providing regular sessions for examination of prosecution
witnesses.
(Rajesh Sekhri)
Judge
Jammu
30.07.2025
Sushant
Whether the order is speaking? Yes
Whether the order is reportable? Yes
[ad_1]
Source link