While Right To Speedy Trial Is Essential Facet Of Article 21, Legislative Embargo U/S.37 Of NDPS Act Must Also Be Respected: Jammu & Kashmir and Ladakh High Court

The petitioner approached the High Court seeking enlargement on bail in a case registered under sections 8,21,22,29 of the NDPS Act, whereunder he is facing trial, because he was arrested on July 26, 2019 and remained in custody ever since, except for a brief period when he was granted bail on medical grounds.

The Single Bench of Justice Sanjay Parihar held, “However, while the right to speedy trial is an essential facet of Article 21, the legislative embargo under Section 37 of the NDPS Act must also be respected unless the conditions for lifting the embargo are demonstrably satisfied. Furthermore, while the court acknowledges that stringent offences demand quicker adjudication, systemic factors such as trial court workload, number of witnesses, and proliferation of narcotics cases cannot be ignored.”

Advocate Koshal Parihar represented the Petitioner while Dy. AG Pawan Dev Singh represented the Respondent.

Factual Background

The case dates back to the year 2019, when a police party, while undertaking a check of vehicles for security reasons, found a truck whose driver tried to flee when he was asked to stop. The truck was intercepted, and the driver (first accused) was apprehended, whereas the petitioner was found in the adjoining seat. Upon checking the vehicle, one plastic bag containing intoxicant drug bottles “cough syrup codeine phosphate (P-Coff-T)” of 100 ml each was found underneath the driver's seat and from the toolbox of the truck, three more plastic bags containing similar manufactured drugs were recovered. In total, 1160 bottles of narcotic substance cough syrup codeine phosphate (P-Coff-T) were recovered. This led to the registration of FIR.

Both the petitioners were charged sheeted who denied the charges and were put on trial. The petitioner applied for short-term bail on account of the surgery of his wife and was given a concession of bail, which was extended from time to time. Since the petitioner failed to surrender before the court and jumped over the bail, as a result, his bail was forfeited, and contempt proceedings were drawn against SSP for not being able to bring the petitioner to justice. With effect from November 8, 2021, till July 3, 2024, the petitioner was alleged to have absconded and subsequently surrendered to the custody and filed an application for bail before the trial court, which was rejected. This prompted the petitioner to approach the High Court.

Reasoning

The Bench, at the outset, observed, “The jurisdiction to grant bail must be exercised on the touchstone of well-settled principles and with due regard to the nature and gravity of the accusations.”

The Bench noted that the petitioner was found travelling in the vehicle from which 1160 bottles of manufactured drugs were recovered. It was also noticed that he is the real brother of the co-accused, and at the time of recovery, he was present inside the vehicle. According to the prosecution, one bag was recovered from beneath the driver’s seat and three bags from the toolbox, all of which contained the contraband. The forensic report confirmed that the seized bottles contained codeine phosphate, a narcotic substance whose possession is prohibited under Section 8 of the NDPS Act unless duly permitted. The Bench also made it clear that, being a manufactured drug, its possession and movement are regulated under the Drugs and Cosmetics Act.

The petitioner had offered no plausible explanation as to how the consignment came to be present in the vehicle. The Bench explained that Section 37 of the NDPS Act mandates that before bail can be granted in cases involving commercial quantity, the accused must satisfy the “twin conditions”, that there are reasonable grounds for believing that he is not guilty of the alleged offences and that he is not likely to commit any offence while on bail. “Though it is correct that the sampling and forensic reports indicate that only two bottles of 100 ml each were examined, and that the seizure memo does not mention batch or lot numbers, this omission alone cannot entitle the petitioner to bail”, it added.

The Bench further highlighted, “The Special Judge, NDPS, Jammu (the trial court herein) is presently burdened with around 2000 cases, more than 700 of which are over five years old. In recognition of such realities, Section 436-A CrPC and its counterpart in the BNSS Sec. 479, provide relief where an undertrial has undergone one-half or one-third of the prescribed sentence, as the case may be”, it added.

The Bench asserted, “Given that he faces accusations of an offence of possession involving a commercial quantity, punishable with a minimum of 10 years and up to 20 years of sentence, bail cannot be granted unless he has undergone at least one-half of the potential sentence or establishes a strong prima facie case of false implication or lack of conscious possession. The petitioner satisfies neither requirement. His prolonged abscondence not only impeded the trial but also reflects a propensity to evade judicial process. Unlike in Mohd supra, where the accused had spent over seven years in custody with a sluggish trial, the petitioner’s incarceration attributable to the State is limited, and the delay is self-created.”

The Bench thus dismissed the Petition.

Cause Title: Mohd Ashraf Wagay v. UT of J&K (Case No.:Bail App 167/2025)

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