HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Bail App No. 204/2024 Reserved on: 21.07.2025 Pronounced on: 30.07.2025 Arif Ahmed …..Appellant(s) Through: Mr. Rohit Verma, Advocate. q 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 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 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 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 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 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 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 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 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