Jammu & Kashmir High Court
Harjeet Singh vs Union Of India on 24 February, 2025
Sr. No.01
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
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.
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
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:
"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.
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
