Jammu & Kashmir High Court
Mohd Roshan Age 30 Years vs Union Territory Of Jammu And Kashmir on 23 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
B.A. No.57/2023
B.A No. 54/2023
Reserved on: 16.05.2025
Pronounced on:23.05.2025
B.A. no. 57/2023
Mohd Roshan Age 30 years
s/oFateh Mohd. R/o Notrani,
Tehsil Malerkotla, Distt. Sangnur, Punjab,
....... Petitioner(s)
Through: Mr. Iqbal Hussain Bhat, Adv. with
Mr. Mohd. Akeel Wani (th. VC)
Versus
1. Union Territory of Jammu and Kashmir
Through its Commissioner/Secretary,
Home Department, Civil Secretariat, Srinagar
2. The Station House Officer
Police Station, Ghagwal, Distt. Samba
Through: None.
......Respondent(s)
B.A. No. 54/2023
1. Rizwan, Age 30 years S/o Peeru
R/o Kothri, Tehsil Behot, Distt. Saharanpur, U.P
....Petitioner(s)
Through:Mr. Iqbal Hussain Bhat, Adv. with
Mr. Mohd. Akeel Wani (th. VC)
Versus
1. Union Territory of Jammu and Kashmir
Through its Commissioner/Secretary
Home Department, Civil Secretariat, Srinagar/Jammu
2. The Station House Officer
Police Station, Ghagwal, Distt. Samba
....Respondent(s)
Through: None.
2
Bail App. Nos. 57 & 54 of 2023
CORAM:HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
ORDER
01. The petitioners were accused in FIR No.13/2020 registered at Police
Station Ghagwal, punishable for offences under Sections 8/15/29 of the
Narcotics and Psychotropic Substance Act, 1985 [„the NDPS Act‟] and are
facing trial before the learned Sessions Judge, Samba (the Special Court
under the NDPS Act) [hereinafter to be referred as „the trial Court‟] are
before this Court in freshbail applications seeking their release on bail. The
application filed by the petitioners before the trial Court already stands
dismissedby the trial Court vide order 25-01-2023.
02. Mr. I.H. Butt, learned counsel appearing for the applicants, would
fairly submit that the applicants are not claiming bail strictly on merits but
are seeking indulgence of this Court to set the applicants at liberty during the
pendency of the challan on the ground of inordinate delay on the part of the
prosecution to conclude the trial. This Court has, therefore, heard Mr. Butt
only on the question of delay to find out as to whether, in the given facts and
circumstances of the case, the applicants are entitled to concession of bail at
this stage.
03. Both the applicants were arrested by Police on 04.02.2020 and the
final report was presented before the trial Court on 16.06.2020. As is evident
from the record, the charges were framed against the applicants on
12.12.2020. Till 13.08.2021 no prosecution witness was examined. On
13.08.2021 a calendar for examination of the witnesses was fixed and PW-1
and PW-2were directed to be examined on 06.09.2021 and PW-3 and PW-4
Bail App. Nos. 57 & 54 of 2023
on 07.09.2021. On these dates no proceedings could be conductedas the
Presiding Officer of trial Court was on leave. On 24.11.2021 the statement
of PW-Mohinder Singh was partially recorded, which was completed on
21.12.2021. On 11.05.2022 the statement of PW-3 was recorded. The
statements of PW-1 and PW-9 were recorded by the trial Court 0n
07.07.2022 and 08.09.2022 respectively. The statement of PW-7 was,
however, recorded after about six months i.e. on 02.03.2023. The case was
taken up by the trial Court on 11.05.2023 and afresh calendar for
examination of the remaining witnesses was fixed whereby PW-4 and PW-
10 were directed to be examined on08.06.2023 and PW-8 on 09.06.2023. On
09.06.2023, the Calendar for examining the same witnesses was re-fixed for
13.07.2023 and 14.07.2023.
04. For another almost four months, nothing happened and it was on
20.11.2023 that the statement of PW-10 was recorded. On 30.03.2024 i.e.
after almost 4 months thereafter, the statement of Constable- Parveen Kumar
was recorded. After 30th of March 2024 no prosecution witness was
produced.
05. From 12.12.2020 when the charge was framed against the applicants
till 30.03.2024 only seven witnesses were produced by prosecutionand
examined by the trial Court. The applicants have placed on record the orders
of the trial Court passed from 07.10.2024to 28.04.2025, a perusal whereof
would indicate that the applicants, who are in jail, are not in any manner
responsible for such delay. The delay has occasioned either because of the
non-availability of the Presiding Officer of the trial Court and the Public
Prosecutor or due to the failure of the prosecution to produce the
Bail App. Nos. 57 & 54 of 2023
witnesseson many occasions. From perusal of the record,as also, the certified
copies of the orders passed by the trial Court from time to time placed on
record by the applicant- Mohd. Roshan through the medium of CrlM No.
749/2025, it is abundantly clear that the delay in concluding the trial is in no
manner attributable to the applicants. The applicants are in jail for the last
more than five years which period is more than half of the minimum
punishment prescribed under Section 15 of the NDPS Act for contravention
in relation to commercial quantity of Poppy Straw.
06. Turning to the facts of the case, it is seen that from the possession of
both the applicants, Poppy Straw weighing 340kgs was recovered by the
Police, which, admittedly is a commercial quantity. The Poppy Straw of the
commercial quantity was being transported by the applicants in
contravention of Section 8 of the NDPS Act. The trial Court has already
framed charges for commission of offences punishable under Sections
8/15/29 of the NDPS Act against the applicants, and, therefore it cannot be
said that the case of the applicants for grant of bail is not hit by Section 37 of
the NDPS Act. The framing of the charge by the trial Court and the material
available on record is sufficient for the trial Court to arrive at the satisfaction
that there are reasonable grounds for believing that the applicants are guilty
of such offences or that they are likely to commit any offence while on bail.
As a matter of fact, on these circumstances only the trial Court has declined
to grant bail to the applicants. I do not find any illegality or infirmity in the
view taken by the trial court.
07. That apart, this Court cannot lose sight of the fact that there is an
unexplained and inordinate delay on the part of the prosecution to conclude
Bail App. Nos. 57 & 54 of 2023
its evidence and the resultant delay by the Court to conclude the trial. The
trial against the applicants, which commenced with the framing of the
charge on 12-12-2020, is almost 5 years old and both the applicants are in
incarceration for the last more than 5 years. It is a trite law that right to
speedy trial is a most vital attribute of fair trial rights of the accused implicit
in Article 21 of the Constitution of India and, therefore, grant of bail on
account of undue delay in trial is not fettered by Section 37 of the NDPS
Act. The special conditions for grant of bail prescribed under Section 37 of
the NDPS Actare required to be considered within the constitutional
parameters. The Hon‟ble Supreme Court in the case Mohd. Muslim @
Hussein vs. State (NCT) of Delhi, 2023 live law SC 260,has held that when
provisions of law curtail the right of an accused to secure bail, and
correspondingly fetter judicial discretion, like Section 37 of the NDPS Act,
the court has upheld them for conflating two competing values, i.e., the right
of the accused to enjoy freedom, based on the presumption of innocence,
and the societal interest.
08. Similarly in Supreme Court Legal Aid committee vs. Union of
India, (1994) SCC 731, the Hon‟ble Supreme Court made some important
observations while dealing with right of bail to those accused of offences
under NDPS Act and it was held thus:
"15.......................As stated earlier, on account of the
strict language of the said provision very few persons accused of
certain offences under the Act could secure bail. Now to refuse bail
on the one hand and to delay trial of cases on the other is clearly
unfair and unreasonable and contrary to the spirit of Section
36(1) of the Act, Section 309 of the Code and Articles 14,
19 and 21 of the Constitution. We are conscious of the statutory
provision finding place in Section 37 of the Act prescribing the
conditions which have to be satisfied before a person accused of an
offence under the Act can be released. Indeed we have adverted to
this section in the earlier part of the judgment. We have also kept
in mind the interpretation placed on a similar provision in Section
Bail App. Nos. 57 & 54 of 2023
20 of the TADA Act by the Constitution Bench in Kartar Singh v.
State of Punjab . Despite this provision, we have directed as above
mainly at the call of Article 21 as the right to speedy trial may even
require in some cases quashing of a criminal proceeding altogether,
as held by a Constitution Bench of this Court in A.R. Antulay v.
R.S. Naik , release on bail, which can be taken to be embedded in
the right of speedy trial, may, in some cases be the demand
of Article 21. As we have not felt inclined to accept the extreme
submission of quashing the proceedings and setting free the
accused whose trials have been delayed beyond reasonable time
for reasons already alluded to, we have felt that deprivation of the
personal liberty without ensuring speedy trial would also not be in
consonance with the right guaranteed by Article 21. Of course,
some amount of deprivation of personal liberty cannot be avoided
in such cases; but if the period of deprivation pending trial
becomes unduly long, the fairness assured by Article 21 would
receive a jolt, It is because of this that we have felt that after the
accused persons have suffered imprisonment which is half of the
maximum punishment provided for the offence, any further
deprivation of personal liberty would be violative of the
fundamental right visualised by Article 21, which has to be
telescoped with the right guaranteed by Article 14 which also
promises justness, fairness and reasonableness in procedural
matters............"
09. Equally important are the directionsissued in the aforesaid case which
read thus:
"(i) Where the undertrial is accused of an offence(s) under the
Act prescribing a punishment of imprisonment of five years or less
and fine, such an undertrial shall be released on bail if he has been
in jail for a period which is not less than half the punishment
provided for the offence with which he is charged and where he is
charged with more than one offence, the offence providing the
highest punishment. If the offence with which he is charged
prescribes the maximum fine, the bail amount shall be 50% of the
said amount with two sureties for like amount. If the maximum fine
is not prescribed bail shall be to the satisfaction of the concerned
Special Judge with two sureties for like amount.
(ii) Where the undertrial accused is charged with an offence(s)
under the Act providing for punishment exceeding five years and
fine, such an undertrial shall be released on bail on the term set
out in (i) above provided that his bail amount shall in no case be
less than Rs. 50,000 with two sureties for like amount.
(iii) Where the undertrial accused is charged with an offence(s)
under the Act punishable with minimum imprisonment of ten years
and a minimum fine of Rupees one lakh, such an undertrial shall
be released on bail if he has been in jail for not less than five years
provided he furnishes bail in the sum of Rupees one lakh with two
sureties for like amount."
(iv) Where an undertrial accused is charged for the commission
of an offence punishable under Sections 31 and 31A of the Act,
Bail App. Nos. 57 & 54 of 2023
such an undertrial shall not be entitled to be released on bail by
virtue of this order.
10. In the case on hand, the offence of possessing the Poppy Straw of the
commercial quantity, as prescribed under Section 15 of the NDPS Act, is
liable to rigorous imprisonment for a term which is less than 10 years but
which may extend to 20 years coupled with fine which shall not be less than
Rs. 1 lakh but may extend to Rs. 2 lakhs and, therefore, completely fits in
direction No. (iii) reproduced above.
11. Before I close, I deem it appropriate it to set out para 15 of the
judgment of the Hon‟ble Supreme Court in Legal Aid Committee case
(supra) herein below:
"15. But the main reason which motivated the Supreme Court
Legal Aid Society to file this petition under Article 32 of the
Constitution was the delay in the disposal of cases under the Act
involving foreigners. The reliefs claimed included a direction to
treat further detention of foreigners, who were languishing in jails
as undertrials under the Act for a period exceeding two years, as
void or in any case they be released on bail and it was further
submitted by counsel that their cases be given priority over others.
When the petition came up for admission it was pointed out to
counsel that such an invidious distinction between similarly situate
undertrials who are citizens of this country and who are foreigners
may not be permissible under the Constitution and even if priority
is accorded to the cases of foreigners it may have the effect of
foreigners being permitted to jump the queue and slide down cases
of citizens even if their cases are old and pending since long.
Counsel immediately realised that such a distinction if drawn
would result in cases of Indian citizens further delayed at the
behest of foreigners, is procedure which may not be consistent
with law. He, therefore, rightly sought permission to amend the
cause title and prayer clauses of the petition which was
permitted. In substance the petitioner now prays that all undertrials
who are in jail for the commission of any offence or offences under
the Act for a period exceeding two years on account of the delay in
the disposal of cases lodged against them should be forthwith
released from jail declaring their further detention to be illegal and
void and pending decision of this Court on the said larger issue,
they should in any case be released on bail. It is indeed true and
that is obvious from the plain language of Section 36(1) of the Act,
that the legislature contemplated the creation of Special Courts to
speed up the trial of those prosecuted for the commission of any
offence under the Act. It is equally true that similar is the objective
Bail App. Nos. 57 & 54 of 2023
of Section 309 of the Code. It is also true that this Court has
emphasised in a series of decisions that Articles 14,
19 and 21 sustain and nourish each other and any law depriving a
person of 'personal liberty' must prescribe a procedure which is
just, fair and reasonable, i.e. a procedure which promotes speedy
trial See HussainaraKhatoon v. Home Secretary, State of Bihar and
andKadraPahadiya v. State of Bihar 19831 2 SCC 104, to quote
only a few. This is also the avowed objective of Section 36(1) of
the Act. However, this laudable objective got frustrated when the
State Government delayed the Constitution of sufficient number of
Special Courts in Greater Bombay; the process of constituting the
first two special courts started with the issuance of a notifications
under Section 36(1) on 4th January, 1991 and under Section 36(2)
on 6th April, 1991 almost two years from 29th May, 1989 when
Amendment Act 2 of 1989 became effective. Since the number of
courts constituted to try offences under the Act were not sufficient
and the appointments of Judges to man these courts were delayed,
cases piled up and the provision in regard to enlargement on bail
being strict the offenders have had to languish in jails for want of
trials.
As stated earlier Section 37 of the Act makes every offence
punishable under the Act cognizable and non-bailable and provides
that no person accused of an offence punishable for a term of five
years or more shall be released on bail unless (i) the Public
Prosecutor has had an opportunity to oppose bail and (ii) if
opposed, the Court is satisfied that there are reasonable grounds for
believing that he is not guilty of the offence and is not likely to
indulge in similar activity. On account of the strict language of the
said provision very few persons accused of certain offences under
the Act could secure bail. Now to refuse bail on the one hand and
to delay trial of cases on the other is clearly unfair and
unreasonable and contrary to the spirit of Section 36(1) of the Act,
Section 309 of the Code and Articles 14, 19 and 21 of the
Constitution. We are conscious of the statutory provision finding
place in Section 37 of the Act prescribing the conditions which
have to be satisfied before a person accused of an offence under
the Act can be released. Indeed we have adverted to this section in
the earlier part of the judgment. We have also kept in mind the
interpretation placed on a similar provision in Section 20 of the
TADA Act by the Constitution Bench in Kartar Singh v. State of
Punjab . Despite this provision, we have directed as above mainly
at the call of Article 21 as the right to speedy trial may even
require in some cases quashing of a criminal proceeding altogether,
as held by a Constitution Bench of this Court in A.R. Antulay v.
R.S. Naik , release on bail, which can be taken to be embedded in
the right of speedy trial, may, in some cases be the demand
of Article 21. As we have not felt inclined to accept the extreme
submission of quashing the proceedings and setting free the
accused whose trials have been delayed beyond reasonable time
for reasons already alluded to, we have felt that deprivation of the
personal liberty without ensuring speedy trial would also not be in
consonance with the right guaranteed by Article 21. Of course,
some amount of deprivation of personal liberty cannot be avoided
in such cases; but if the period of deprivation pending trial
becomes unduly long, the fairness assured by Article 21 would
receive a jolt, It is because of this that we have felt that after the
accused persons have suffered imprisonment which is half of the
maximum punishment provided for the offence, any further
Bail App. Nos. 57 & 54 of 2023
deprivation of personal liberty would be violative of the
fundamental right visualised by Article 21, which has to be
telescoped with the right guaranteed by Article 14 which also
promises justness, fairness and reasonableness in procedural
matters.
What then is the remedy? The offences under the Act are grave
and, therefore, we are not inclined to agree with the submission of
the learned Counsel for the petitioner that we should quash the
prosecutions and set free the accused persons whose trials are
delayed beyond reasonable time. Alternatively he contended that
such accused persons whose trials have been delayed beyond
reasonable time and are likely to be further delayed should be
released on bail on such terms as this Court considers appropriate
to impose. This suggestion commends to us. We were told by the
learned Counsel for the State of Maharashtra that additional
Special Courts have since been constituted but having regard to the
large pendency of such cases in the State we are afraid this is not
likely to make a significant dent in the huge pile of such cases.
We, therefore, direct as under:
(i) Where the undertrial is accused of an offence(s) under the Act
prescribing a punishment of imprisonment of five years or less and
fine, such an undertrial shall be released on bail if he has been in
jail for a period which is not less than half the punishment
provided for the offence with which he is charged and where he is
charged with more than one offence, the offence providing the
highest punishment. If the offence with which he is charged
prescribes the maximum fine, the bail amount shall be 50% of the
said amount with two sureties for like amount. If the maximum
fine is not prescribed bail shall be to the satisfaction of the
concerned Special Judge with two sureties for like amount.
(ii) Where the undertrial accused is charged with an offence(s)
under the Act providing for punishment exceeding five years and
fine, such an undertrial shall be released on bail on the term set out
in (i) above provided that his bail amount shall in no case be less
than Rs. 50,000 with two sureties for like amount.
(iii) Where the undertrial accused is charged with an offence(s)
under the Act punishable with minimum imprisonment of ten years
and a minimum fine of Rupees one lakh, such an undertrial shall
be released on bail if he has been in jail for not less than five years
provided he furnishes bail in the sum of Rupees one lakh with two
sureties for like amount.
(iv) Where an undertrial accused is charged for the commission of
an offence punishable under Sections 31 and 31A of the Act, such
an undertrial shall not be entitled to be released on bail by virtue of
this order.
The directives in Clauses (i), (ii) and (iii) above shall be subject to
the following general conditions:
(i) theundertrial accused entitled to be released on bail shall deposit
his passport with the learned Judge of the concerned Special Court
and if he does not hold a passport he shall file an affidavit to that
Bail App. Nos. 57 & 54 of 2023
effect in the form that may be prescribed by the learned Special
Judge. In the latter case the learned Special Judge will, if he has
reason to doubt the accuracy of the statement, write to the
concerned Passport Officer to verify the statement and the Passport
Officer shall verify his record and send a reply within three weeks.
If he fails to reply within the said time, the learned Special Judge
will be entitled to act on the statement of the undertrial accused;
(ii) the undertrial accused shall on being released on bail present
himself at the police station which has prosecuted him at least once
in a month in the case of those covered under Clause (i), once in a
fortnight in the case of those covered under Clause (ii) and once in
a week in the case of those covered by Clause (iii), unless leave of
absence is obtained in advance from the concerned Special Judge;
(iii) the benefit of the direction in Clauses (ii) and (iii) shall not he
available to those accused persons who are, in the opinion of the
learned Special Judge, for reasons to be slated in writing, likely to
tamper with evidence or influence the prosecution witnesses;
(iv) in the case of undertrial accused who are foreigners, the
Special Judge shall, besides impounding their passports, insist on a
certificate of assurance from the Embassy/High Commission of the
country to which the foreigner- accused belongs, that the said
accused shall not leave the country and shall appear before the
Special Court as and when required;
(v) theundertrial accused shall not leave the area in relation to
which the Special Court is constituted except with the permission
of the learned Special Judge ;
(vi) theundertrial accused may furnish bail by depositing cash
equal to the bail amount;
(vii) the Special Judge will be at liberty to cancel bail if any of the
above conditions are violated or a cases for cancellation of bail is
otherwise made out; and
(viii) after the release of the undertrial accused pursuant to this
order, the cases of those undertrials who have not been released
and are in jail will be accorded priority and the Special Court will
proceed with them as provided in Section 309 of the Code."
12. From the legal position adumbrated hereinabove and the fact situation
obtaining in the case, this Court is of the considered opinion that the
applicants have made out a case for grant of bail on the touchstone of Article
21 of the Constitution of India, rigors of Section 37 of the NDPS Act
notwithstanding.
13. Accordingly, both the bail applications are allowed and disposed of by
providing as under:-
Bail App. Nos. 57 & 54 of 2023
(i) That the applicants shall be released on bail in case FIR No.
13/2020, Police Station Ghagwal for offences under Section
8/15/29 NDPS Act pending trial before the Court of learned
Sessions Judge, Samba, (the special Court under the NDPS
Act) subject to furnishing bonds in the sum of Rs. 1 lakh each
to be deposited with the trial Court in cash with 2 sureties each
of the like amount to the satisfaction of the trial Court.
(ii) The applicants shall present themselves at Police Station
Ghagwal once in a fortnight.
(iii) That the applicants shall not leave the jurisdiction of the trial
Court except with the permission of such Court.
(iv) That the applicants shall deposit their Passports, if any, with the
trial Court and in case they do not possess such Passports, they
shall file their individual affidavits in this regard before the trial
Court.
(v) That the applicants shall not come in contact with or influence
the prosecution witnesses which are yet to be examined in the
trial.
(SanjeevKumar)
Judge
SRINAGAR
23.05.2025
Anil Raina, Addl. Reg/Secy
Whether the order is speaking: Yes
Whether the order is reportable: Yes
