Sr. No. 40 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 11.08.2025 Pronounced on: 19.08.2025 Crl A(D) No. 20/2024 CrlM Nos. 654/2025, 1498/2024 & 1499/2024 Syed Iftikhar Andrabi, Aged 53 years, Th. Wife Syed Lateefa, Aged 51 years, R/o Laribal, Rajwar, Handwara, Kupwara, UT of J&K. …. Appellant(s) Through:- Ms. Warisha Farasat, Advocate. Mr. Umair A. Andrabi, Advocate. Ms. Tanisha, Advocate. Ms. Suvarna Swain, Advocate. V/s National Investigation Agency, Jammu …..Respondent(s) Through:- Mr. Vishal Sharma, DSGI. Mr. Chandan Kumar Singh, Advocate (P.P NIA). CORAM: HON’BLE MR. JUSTICESANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE JUDGMENT (Per:-Sanjay Parihar-J) CrlM No. 1499/2024 1. The instant application has been filed by the applicant, seeking condonation of delay of 05 days in filing the appeal. 2. For the reasons stated in the application, coupled with the submissions made at the Bar, the same is allowed and delay of 05 days in filing the appeal is condoned. 3. Application is, accordingly, disposed of. Crl A(D) No. 20/2024 4. The aforesaid appeal is directed against the order of rejection of bail of appellant Dt. 10.08.2024 (for short „the impugned 2 Crl A(D) No. 20/2024 order’) drawn by 3rd Additional Sessions Judge, Jammu („Special NIA Court‟) (hereinafter referred to as the, “trial Court”), wherein the appellant was facing trial in RC: 03/2020/NIA/JMU, U/S 17, 38 & 40 UA(P) Act, 8/21/25 & 29 of NDPS Act r.w Section 120-B IPC. 5. It is urged that the trial Court has erred in rejecting the bail application, as the appellant has been falsely implicated, rather has been framed. It also erred in not, prima-facie, appreciating the evidence recorded in trial so far. That petitioner has got impeccable record of being involved in social and political work and on 07.08.2019, he was detained under J&K Public Safety Act, on the ground that he was an active politician and had the ability to amass large number of people. The said detention, however, was quashed and immediately on being released, has been implicated in the aforesaid FIR on the allegation that some contraband has been recovered at his behest, which is totally false and there is, in fact, not an „iota of evidence‟ against him to warrant drawing of charge against him.That he was called in Handwara Police Station on the pretext of verification, thereafter roped in on 11.06.2020 and since then, he is in custody. It is also alleged that he has been framed on the strength of alleged disclosure, which on the face of it, has no legal value. The implication of the appellant in a case of narco-terrorism is absolutely based on no evidence. It is further alleged that on similar set of facts, this Court has already granted bail to co-accused and even one more accused has been 3 Crl A(D) No. 20/2024 bailed out by the Apex Court, therefore, he deserves to be granted bail on parity. 6. It is further case of the appellant that the trial is bound to consume lot of time and before the trial Court, the respondent- Investigating Agency has cited more than 250 witnesses, whereas the appellant has been in custody for nearly five years. Therefore, neither there is any case of conspiracy of being involved in narco-terrorism case nor is there any material against him, to warrant his continuation in custody. 7. Charge-sheet has been laid against the appellant and other accused on the strength of incident dated 11.06.2020, when the co-accused, namely, Abdul Momin Peer was found travelling in an un-regd. (CRETA) vehicle and on search, six packets of narcotic drugs „Heroin‟ weighing 6.200 kg and Indian currency valuing ₹20.00 lacs was recovered and later on, upon his disclosure from the possession of A-2, A-3, A-4, A-5 & A-6, there has been recovery of large quantity of Heroin weighing 21 kg, besides cash of ₹1,35,89,850/ also recovered. In addition, large amount of cash has been stashed in various Banks. Insofar as appellant is concerned, upon his disclosure, Heroin weighing 3.200 kg was recovered from bedroom of A-5, namely, Saleem Andrabi. In addition, there was also recovery of cash amounting to more than ₹35 lacs. As per the charge-sheet, the accused persons had been procuring narcotics drugs from Tanghdhar, which is located in the border area with POK and supplying the same in different parts of the States and the 4 Crl A(D) No. 20/2024 money derived thereto is used for funding militancy in the UT of Jammu and Kashmir. This has been unearthed from the disclosure of A-1, who had linkage with Pakistan based Commanders of „Lashkar-e-Taiba‟ (LET) and „Hizbul Mujahidin‟. So much so, the present appellant too has travelled to Pakistan and met with the handlers, who were indulging in funding the insurgency in this part of the country. The CDR analysis of appellant would reveal that he contacted with one-Jamil-Ur-Rehman, the Chief of „Tehreek-Ul-Mujahideen‟ (TuM), with whom, he was in communication via protocol. He was also in touch with one Saifullah @ Sayfullah and it was established that appellant along with A-1 visited Pakistan and met Waheed Gillani and Saifullah, both are working for terrorist organization. During the visit to that area, the petitioner and the co-accused hatched a conspiracy to generate money from narcotic substance and use that for funding the terrorist organization. The petitioner, therefore, has been accused of offence under Sections 8/21/25/29 of the NDPS Act and Section 120-B of the IPC read with Sections 17, 38 & 40 of the UA(P) Act. 8. Trial Court has denied concession of bail to the appellant precisely on the ground that the case against him is at infancy and once charges have been drawn against him, there are grounds for presuming that he is involved in narco-terror activities, thus, not entitled to concession of bail. 5 Crl A(D) No. 20/2024 9. Learned counsel for the appellant has argued that pace of the trial is slow and for four years, not a single witness was examined and the way trial is proceeding, there are no immediate prospect of trial being concluded. Therefore, relying on the judgment of the Apex Court rendered in case of “Union of India Vs. K.A. Najeeb, (2021) 3 SCC 713” as well as the bail granted to co-accused, Islam-Ul-Haq Peer by a Co-ordinate Bench of this Court dated 18.02.2025, it was urged that given the case against the appellant is based on disclosure with no recovery from him, it cannot be said that appellant was having conscious possession of the contraband or the ill-gotten money. 10. It was further argued that even if, for the sake of arguments, it is conceded that there is recovery of contraband at the behest of the petitioner, but even then, the case is restricted to the commission of offence under NDPS Act, which had got nothing to do with commission of any terrorist activity or conspiracy to commit such an activity. So at the most, the petitioner can be said to have committed offence of possession of narcotic substance only and given the fact that the petitioner was under preventive detention and once he was released, thereafter he was immediately arrested and framed in this case, which goes on to show that the past history of the petitioner did not relate to any narco-terror activity, as he was a political activist, who had been roped in because of 5th August, 2019 scenario, thus, has already undergone custody of 5 yrs. So, he is entitled to be released on bail. 6 Crl A(D) No. 20/2024 11. Per contra, Ld. DSGI argued that it is a classic case of narco- terror activity, wherein a complete web of activities were organized by the appellant and the co-accused in procuring warehousing, transporting and sale of the drugs and then use the proceeds thereof in furthering terrorist activities because the money realized was used for purposes of terror funding and the whole process had started in the year 2016, much prior to the occurrence, leading to the registration of the present case because both the present appellant and the accused No. 1 had visited Pakistan, met accused No. 15 and hatched conspiracy to raise funds to strengthen terror activities for “proscribed terror organizations”, namely, „Lashkar-e-Taiba‟ (LET) and „Hizbul Mujahidin‟ in the UT of Jammu &Kashmir. It was in pursuance of the said conspiracy that the whole module was made operational, by which the heroin originated from across the border is dispatched to this part of the UT and through OGWs, the narcotic drug is collected, transported and put for sale and the funds generated are later on utilized for strengthening terror activities of such organizations. 12. Learned DSGI further argued that once charges had been drawn against the appellant, that goes on to show that before the trial Court, there was strong, prima-facie material to warrant framing of charge, which serves as an additional link to deny the concession of bail; that the trial is underway and the appellant cannot claim bail as a matter of right. Distinguishing the concession of bail granted to co-accused, namely, Romesh 7 Crl A(D) No. 20/2024 Kumar and Islam-Ul-Haq Peer, it was argued that the case related to both the accused therein are quite different than the one, for which the petitioner has been roped in. 13. We have heard both the counsels, besides perused the record. 14. In, Union of India Vs. K.A. Najeeb, (2021) 3 SCC 713” the petitioner therein had been in custody for almost 5 ½ years without trial having started. It was in that background held that even if, there are statutory restrictions under both the Acts, the same do not oust the ability of the Constitutional Courts to grant bail on grounds of violation of part III of the Constitution. It was further held that at the commencement of the proceedings, the Constitutional Courts are expected to appreciate the legislative policy against grant of bail, but the rigours of such provision 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. The Apex Court in, “Sheikh Javed Iqbal Vs. State of Uttar Pradesh, 2024 (8) SCC 293”, which is a case involving fake Indian currency notes emanating from Nepal and using the same for commission of unlawful activity, has held that if the trial is prolonged, the prosecution cannot oppose bail of the accused under trial on the grounds that the charges are very serious. Further seriousness of charge will have to be balanced with certain other factors like period of custody suffered and the likely period, within which, the trial can be expected to be 8 Crl A(D) No. 20/2024 completed. In the said case, the accused had been arrested on 23.02.2015 and by the time, his bail application reached to the Apex Court, he was already in custody for over four years and since the trial had only led to the examination of two witnesses, it was found that the trial could not be concluded in the near future. In that background, the accused was let on bail. 15. It is true that seriousness of the charge by itself cannot be a ground for declining of concession of bail and given the law operating on the subject, it needs to be balanced with the period of custody and the likelihood of period for completion of trial. We had an occasion to peruse the compilation, that has been submitted by the learned counsel for the appellant, though the charge-sheet had been filed in the year 2021, however, the formal charges have been framed only on 15.11.2023. During the course of hearing, learned counsel for the appellant has vehemently argued that the Approver Showkat Ahmed Parray had already been examined and from his deposition, nothing incriminating has come up against the appellant, which is controverted by the respondents on the premise that though the said Approver had been examined, but still there are material witnesses yet to be examined, so it would be highly premature to contend that the accusation against the appellant are untrue. 16. We agree with the submissions of the learned DSGI because the trial is at initial stage and after drawing of charges, some of the witnesses have been examined. We find that on the disclosure of the appellant, 3.2 kg of heroin came to be recovered from the 9 Crl A(D) No. 20/2024 room of accused No. 4. In addition, there was also recovery of hard cash of more than ₹20.00 lacs. Though the factum of concealment of hard cash, on the face of it, does not emanate from the disclosure of the appellant herein, however, it would be premature, at this stage, to hold that said disclosure statement made by the appellant has no evidentiary value. We are conscious of the fact that at the stage of grant or refusal of the bail, the trial Court could not have gone into the realm of “sifting of evidence” because that was bound to prejudice the case of the prosecution. Having said so, the antecedents of the appellant herein are also questionable and would have dissuaded the trial court from holding the case of the respondents as untrue. During, investigation, it has been found that the appellant herein was put to questioning as mobile device, seized from his possession was put to forensic examination, so as to extract data to which he was confronted with. It revealed that appellant was having contacts with certain persons living across the border, who had been actively engaged in subversive activities like one- Waheed Geelani, who was residing in Muzaffarabad. There appears to have been conversation between the appellant and the said person, who was an active handler of „Hizbul Mujahidin‟ militants, so much so, the accused No. 15, who is absconding and operating from POK was controlling the entire syndicate of narco-terror activities, with whom, the appellant had direct contact. 10 Crl A(D) No. 20/2024 17. Learned counsel for the appellant argued that the alleged conversation with Waheed Geelani is, in fact, untrue because from open-source technology, she had been able to find out, that the alleged number is of Karachi Pakistan, which is a Qmobile Customer Centre. Thus, claim of appellant, having any direct contact with syndicate operating from across the borders and indulging in narco-terror activities, is totally baseless. May be the assertion of the counsel for the appellant has got some substance, however, since the trial is underway, the prosecution is yet to demonstrate and lead evidence regarding the culpability of the appellant. In that background, given the investigation conducted and material collected so far, including the data extracted from his mobile phone, which was confronted to him on 24.07.2020, there certainly appears a reasonable basis to believe that the appellant was in contact with syndicate, who were operating from across the borders. So, much so, had travelled to that area in the year 2016, developed contacts. After large quantity of heroin and cash came to be detected, it surfaced that the appellant along with co-accused were operating clandestinely using web-based applications to effect transportation, sale of narcotics and subsequently, the money realized thereto, was transacted with the syndicate operating from across the borders. 18. It was argued that the appellant is in custody for nearly five years and there are more than 320 witnesses cited in the charge- sheet and the way the trial is being conducted where, only 10 11 Crl A(D) No. 20/2024 witnesses have been examined out of 361, chances of conclusion of trial in near future is too remote. Though right to speedy trial is inherent and very dear to justice delivery system, however, as held in, “Gurwinder Singh Vs. State of Punjab, 2024 (5) SCC 403”, mere delay in trial pertaining to grave offence cannot be used as a ground to grant bail. In that case, the trial was underway and though 22 witnesses including protected witnesses had been examined and some more witnesses were left out, a claim that trial may not be possible to conclude at the near future was not approved, Hence, prayer for grant of bail, was declined, holding that mere delay in trial cannot be used as a ground to grant bail. We have from the compilation noticed, though charge-sheet was filed against the appellant and co- accused in 2021 but accused were formally charged only on 15-11-2023 and delay in this regard was due to accused who were filing application after application, so delay, if any, cannot be solely attributable to prosecution. 19. Next reliance is placed on the order dated 18.02.2025 passed by a Co-ordinate Bench of this Court in bail plea of co-accused, namely, Islam-Ul-Haq Peer. We have gone through the said order. In that case, the petitioner was the real brother of one of the co-accused and against the later, there were strong allegations of indulging in narco-terror activities, the petitioner therein was not directly connected, rather the allegations against him, were that his brother gave him some packets of narcotics, 12 Crl A(D) No. 20/2024 which he concealed in his house. It was alleged that he had prior knowledge of the concealment of contraband. The Co-ordinate Bench was of the view that since the only evidence against him is the recovery in terms of Section 27 of the Evidence Act, however, there was no other material to show that the petitioner therein was in conscious possession of the contraband. The Co-ordinate Bench has further held that mere possession will not be considered as an offence unless it was coupled with the knowledge of what was being possessed. In that background, the petitioner therein was bailed out. 20. The case of the appellant herein is totally different, here not only on the strength of his disclosure contraband has been recovered, in fact, there is, prima-facie, material to warrant a view that he had knowledge about concealment of particular quantity of contraband. In addition, the incriminating material extracted from his handset, describes that he was in constant touch with the syndicate operating from across the border, who was indulging in narco-terror activities. Though the appellant may not be the central figure in the said syndicate, but it would be highly premature to hold that he had no prior knowledge of the operations of the said syndicate. 21. Reliance was also placed on the bail granted to co-accused, namely, Romesh Kumar by the Apex Court vide order dated 07.02.2025. With due respect, the appellant cannot draw much benefit from the case of said Romesh Kumar (supra), who was an employee of Narcotic Control Bureau (NCB), who during 13 Crl A(D) No. 20/2024 the course of his duties was found in possession of ₹91.00 lacs of hard cash. However, there were no allegations that the said recovery had any relation, with any terror links. Whereas in the case of appellant, the material was sufficient enough to have dissuaded the trial Court from exercising concession of bail in his favour. 22. The material laid by prosecution, prima-facie, has shown the complicity of appellant in commission of narco-terror activities and once charges have been framed against him, it would be safe to assume that a strong suspicion is founded on strength of material on record of Court. This would continue to operate unless rebutted or contradicted by other evidence. Appellant has not been able to demonstrate before us that case against him is based on no evidence or that oral evidence already led in trial stood contradicted in cross-examination. We, therefore, do not see any perversity in order impugned and, thus, proceed to dismiss this appeal. 23. Dismissed as such alongwith connected applications and file to records. (Sanjay Parihar) (Sanjeev Kumar) Judge Judge JAMMU 19 .08.2025 Ram Krishan Whether the order is speaking? Yes Whether the order is reportable? Yes Ram Krishan 2025.08.20 14:23 I attest to the accuracy and integrity of this document