HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case: Bail App No. 219/2024 Reserved on: 17.02.2025 Pronounced on: 24.02.2025 Harjeet Singh ….Petitioner(s) Through :- Mr. Akeel Wani, Advocate V/s Union of India ….Respondent(s) Through: Mr. Vishal Sharma, DSGI Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT 24.02.2025 1. Petitioner is aggrieved of order dated 21.08.2024, passed by learned Principal Sessions Judge, Samba [“the trial court”], vide which, a plea for his emancipation on bail, in Crime No. 69/2021;NCP Jammu, for offences under Sections 8/20/60 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short „NDPS Act‟), came to be declined. 2. The factual matrix of the case, in a narrow compass is that on 16.08.2020, Narcotics Control Bureau (NCB), Jammu, acting on specific information, intercepted a Truck bearing Registration No. PB-08 BV 9981 and recovered 14.660 kgs of Charas from the possession of the petitioner and co-accused, Raj Kumar. On the basis of their statements under Section 67 of the NDPS Act, they were arrested and the respondent-Investigating Agency, after legal formalities, presented a complaint in the trial Court for the alleged Sr. No.01 2 Bail App No. 219/2024 commission of offences punishable under Sections 8/22/29 NDPS Act. Both the accused came to be charged by the trial court on 25.06.2022, whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence and the prosecution so far has been able to examine PW-5 and PW-3- Mohd. Nawab in part. 3. Petitioner is aggrieved of aforesaid order dated 21.08.2024 passed by learned trial Court and seeks bail, predominantly, on the premise of prolonged incarceration and delayed trial. 4. The application filed by the petitioner for his enlargement on bail came to be dismissed by the trial Court, primarily on the ground of bar contained in Section 37 NDPS Act as also on the ground that an accused cannot be released on bail merely on the basis of long incarceration. 5. Mr. Akeel Wani, learned counsel for the petitioner has relied upon judgments of Hon‟ble Supreme Court in Pramod Kumar Saxena v. Union of India and ors. [Writ Petition (Crl.) No. 58 of 2007 dated 19.09.2008], Dheeraj Kumar Shukla v. The State of Utter Pradesh [Special Leave to Appeal (Crl.) No. 6690 of 2022 dated 25.01.2023], Rabi Prakash v. The State of Odisha [Special Leave to Appeal (Crl.) No. 4169 of 2023 dated 13.07.2023] and a couple of orders passed by this Court in Zubair Ahmed v. UT of J&K [Bail App. No. 23/2024 dated 03.04.2024] and Balbir Chand v. UT of J&K [Bail App No. 01/2024 dated 09.07.2024], to reiterate the grounds urged in the petition. 6. There is no quarrel to the settled position of law that delay in trial by itself constitutes denial of justice and delay on the part of the trial Court or prosecution is violative of Article 21 of the Constitution of India. 3 Bail App No. 219/2024 7. As the trial Court record would unfurl, a complaint came to be filed against the petitioner and co-accused in the trial Court on 10.02.2021. Counsels for both the accused sought time to file their power of attorney and later sought time to address arguments on charge. On 18.11.2021, Mr. Rahul Sambyal, counsel for accused persons withdrew his power of attorney. Accused persons were informed about the same and they sought time to engage a lawyer. On 14.12.2021, no counsel was present on their behalf. On 22.02.2022, Mr. Vishal Singh, Advocate filed power of attorney on behalf of the petitioner and accused No. 2 sought time to engage a lawyer. On the next date i.e. on 19.04.2022, counsel for both the accused persons were absent. On 02.05.2022, Mr. Vishal Singh, Advocate filed power of attorney on behalf of accused no. 2 also and sought time for arguments. Finally, on 25.06.2022 accused came to be charged by the trial Court. It is evident from the above that it took about one and a half years for counsels for accused, including the petitioner, to conclude arguments on charge. On the very next date of hearing, i.e. on 24.09.2022 PW-5-Pawan Dev was examined by the trial Court. Again on 08.05.2023, Mr. Iqbal Bhat filed power of attorney for the petitioner. On 10.07.2023, though one of the prosecution witnesses was present but his statement could not be recorded due to the absence of counsel for accused No. 2, who again sought time to engage a lawyer and when failed to do so for a number of hearings, on 21.10.2023, Deputy Defence Counsel was appointed by the trial Court for accused No. 2 and prosecution was directed by the trial court to positively produce evidence on 18.11.2023 and 12.01.2024. On 17.02.2024, though PW-Koushal Kumar was present, but his statement could not be recorded due to the absence of the counsel for the petitioner. On 4 Bail App No. 219/2024 18.05.2024 PW-3-Mohd. Nawab came to be examined by the trial court in part and said witness was bound down. On 13.11.2024, said PW-3 was present, but his statement again could not be recorded due to the absence of learned arguing counsel for the petitioner. 8. No doubt, right to speedy trial is a fundamental right of a person 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 fundamental right to a speedy trial and the presumption of innocence are crucial considerations in granting bail, however, it not an absolute or automatic ground and courts are obliged to consider the totality of circumstances, which caused delay in the conclusion of trial. 9. 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 an accused to be released on bail, in cases of delay in trial, has cautioned that the said principle cannot be mechanically applied to all cases. Relevant excerpt of the judgment captured in para-17 is reproduced 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.” 10. A similar view has been taken in State of Bihar and another v. Amit Kumar alias Bacha Rai; AIR 2017 SC 2487, whereby the Apex Court cancelled the bail granted by the High Court on the ground of prolonged custody of the accused. Relevant observation made in para 9 of the judgment reads as below: 5 Bail App No. 219/2024 “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” 11. 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 had already undergone a period of incarceration of 3½ 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.” 12. In the aforesaid background, the case law relied by learned counsel for the petitioner is distinguishable on facts and circumstances because it was the prosecution or the court system which was responsible for delayed trial in those cases. 13. It is evident from the chronology of events adumbrated in the preceding paras that it is neither the trial Court nor the prosecution alone, who can be held responsible for delayed trial and it is petitioner/accused No.1 and co- accused No.2 who were equally responsible to contribute to cause delay in the conclusion of trial. It took about one and a half years for the defence counsels to conclude arguments on charge/discharge and not only that, accused persons kept changing their counsels even during the trial and on various occasions the witnesses present in the court could not be examined due to absence of one counsel or the other, particularly, learned arguing counsel for the petitioner. 6 Bail App No. 219/2024 14. 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 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. 15. 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 fixing regular calendars for examination of the prosecution witnesses, preferably within a period of six months from the date copy of this order is made available. (RAJESH SEKHRI) JUDGE Jammu: 24.02.2025 Paramjeet Whether the order is speaking? Yes Whether the order is reportable? Yes