Violation Of Right To Speedy Trial Will Not Come To Rescue When Prima Facie Case Of Heinous Crime Is Shown: Jammu And Kashmir & Ladakh High Court

The Jammu And Kashmir & Ladakh High Court observed that once a person is prima facie shown to have been involved in such heinous crime, the law regarding the delayed trial or violation of constitutional right of having speedy trial would not come to his rescue.

The Court considered a bail application of a person accused of being involved in cross border smuggling of drugs involving transactions worth crores.

The Bench of Justice Sindhu Sharma and Justice Shahzad Azeem observed, “In this regard suffice to say that once the appellant is prima facie shown to have involved in such heinous crime, the law regarding the delayed trial or violation of constitutional right of having speedy trial would not come to his rescue, because enlargement in that event would necessarily fraught with danger of indulgence in such activities, particularly when non-state actors in control of all such alleged terrorist related activities and are operating from across the Border.”

Advocate I.H. Bhat represented the Petitioner, while Advocate Monika Kohli represented the Respondents.

Case Brief

An FIR was lodged under Sections 8/21/22/25/27-A/29 NDPS Act at Police Station City, Jammu, as the two accused persons one polythene pink coloured bag containing about 260 gms heroine was found and also Rs. 12,00,560/ cash in the shape of bundles was recovered.

In investigation, it was found out that the alleged accused persons are involved in trafficking of heroine, which was being pumped from across the border (Pakistan). It was further revealed that one Naseer Ahmed, the brother of accused Fayaz Ahmed Dar, presently operating from Rawalpindi (Pakistan), and stated to be a trained terrorist was also involved in cross border smuggling of drugs involving transactions worth crores.

During investigation sufficient material has been collected in the shape of details of bank accounts, CDRs, statements of witnesses etc, which would prima facie establish that the appellant along with co-accused were in contact with the terrorist who were said to have been operating from across the border and were instrumental in cross border narco trafficking, so as to generate the funds for bringing unrest in the country.

While, the Appellant submitted that Court’s Analysis he has been booked in a false and frivolous case. He further pointed out the issue of delayed trial and submitted that it would further take about 20 years to complete it.

Court’s Analysis

The Court noted that before considering the plea for granting bail, the appellant, has to cross the twin conditions which are almost pari materia as enumerated under Section 37 of NDPS Act and Section 43-D (5) of UA(P) Act.

“We are conscious of the fact that while dealing with the bail application, the Court is only required to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise and the Court is not required to record a finding based on proof beyond doubt or return a opinion upon the probative value of the evidence of the witnesses which may be in progress”, the Court said.

The Court opined that in order to arrive at the conclusion as to whether there is a prima facie case, the requirement of law is that the material collated by the investigating agency in reference to the accusation must prevail until contradicted or disproved by other evidence.

With regard to the plea raised regarding the delayed trial and resultant continuous incarceration, the Court opined, "the law on this point is no more res integra."

Further, the Court also takes into account that at the stage of consideration of the bail giving of reasons for grant or non-grant of bail are markedly different from discussing merits or demerits of the evidence.

The Court observed, “In view of the law governing the subject and material collected during investigation, so much so the evidence of the material witnesses so far recorded, we are satisfied that there is prima facie material on record indicating the complicity of the appellant in carrying out the alleged terrorist activities and drug trafficking so as to bring unrest within the country, therefore, at this stage indulgence is unwarranted.”

Accordingly, the Court dismissed the Appeal.

Cause Title: Arshad Ahmed Allaie V. U.T. of Jammu & Kashmir

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