HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case: Bail App No. 214/2024 Reserved on: 12.03.2025 Pronounced on: 18.03.2025 Azhar Din ….Petitioner(s) Through :- Mr. Priyanshu Sharma, Advocate V/s UT of J&K ….Respondent(s) Through: Mr. Pawan Dev Singh, Dy. AG Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT 1. Petitioner has invoked special jurisdiction of this Court, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”) for bail, after his plea for the said relief, vide order dated 12.07.2024, came to be declined by the Court of learned Additional Sessions Judge, Jammu (“the trial Court”]. 2. Brief facts of the case are that on 19.12.2021, Anti Narcotic Task Force (ANTF), Jammu received a source information that two persons, namely, Mehmood Zahid and Azhar Din, in furtherance of common criminal intention to smuggle a huge quantity of charas were on their way from Srinagar in Vehicle No. JK12A-6379 and trying to sell the contraband to someone near overhead Railway Bridge, Sainik Colony, Jammu. On receipt of this information, FIR No. 14 of 2021 came to be Sr. No. 2 Bail App No. 214/2024 registered and investigation led to the recovery and seizure of 3.322 Kgs of charas. Investigation culminated in filing of charge-sheet against the petitioner and co-accused on 06.06.2022 for offences under Sections 8/20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”] and accused came to be charged by the trial court for the said offences on 25.07.2022. 3. Petitioner preferred an application for his release on bail in the trial court, which came to be dismissed primarily on the ground of bar contained in Section 37 of the NDPS Act. 4. Petitioner is aggrieved of the trial court order dated 12.07.2024 primarily on the ground of procrastinated trial and incarceration. 5. Having heard learned counsel for the parties, I have perused the record. 6. While learned counsel for the petitioner has reiterated his stand in the arguments, learned Government counsel has defended the impugned order on the ground that since petitioner is involved in the recovery of a commercial quantity of contraband from his conscious possession, therefore, he is not entitled to be enlarged on bail in view of bar contained in Section 37 of the NDPS Act. 7. Uncontroverted facts of the case are that FIR in the present case came to be lodged on 19.12.2021 and the petitioner came to be arrested on the same day. Final report against the petitioner and co-accused came to be laid in the competent Court on 06.06.2022 and they were charged by the trial court on 25.07.2022. Prosecution has cited as many as 20 3 Bail App No. 214/2024 witnesses in the case, out of which, so far prosecution has succeeded to examine about six witnesses. 8. It is settled position of law that delay in trial by itself constitutes denial of justice and violative of Article 21 of the Constitution of India. Therefore, in cases of protracted trial and incarceration and bleak possibility of early completion of trial, accused is entitled to be released on bail. I am fortified by Mohd. Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260. 9. The petitioner, in the present case, is behind the bars for more than three years and prosecution has so far succeeded to examine about six witnesses including witnesses to the personal search, seizure memo and sealing of exhibits, subscriber of FIR, eye witnesses regarding search and seizure of the contraband and deposition of exhibits in the FSL. Statement of PW-5 Dhanertar Singh has been recorded in part. Remaining prosecution witnesses are either formal witnesses to the report of FSL, Videography, Photography, CDRs/tower location of mobile phones of accused persons, lodgement of FIR, preparation of charge-sheet and Malkhana or police witnesses to the occurrence and the Investigating Officer. It is evident that trial of the case will consume some time to conclude. One of the co-accused is already on bail on medical grounds. In the circumstances, accused is entitled to be enlarged on bail. 10. Having regard to the aforesaid, the present application is allowed and the petitioner is directed to be released on bail on his furnishing a surety bond in the amount of Rs. 1.00 lac and a bond of personal 4 Bail App No. 214/2024 recognizance of the like amount to the satisfaction of learned trial court, subject, however, to the condition that he shall not jump over bail and shall remain present in the trial court on each and every date of hearing. 11. Violation of the bail conditions shall entail in the forfeiture of bail bonds and petitioner shall be immediately taken to the custody without reference to the board. (RAJESH SEKHRI) JUDGE Jammu: 18.03.2025 Paramjeet Whether the order is speaking? Yes Whether the order is reportable? No