Jammu & Kashmir High Court
Umar Riyaz vs Union Territory Of J&K on 23 July, 2025
=h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No.167/2024
Umar Riyaz ...Petitioner(s)
Through:- Mr. Anmol Sharma, Advocate
V/s
Union Territory of J&K ...Respondent(s)
Through:- Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI,
JUDGE
JUDGMENT
1. This is an application by the petitioner under Section 439 of the Code of Criminal Procedure, 1973 seeking his enlargement on bail in case FIR No.0177/2018 under Section 8/15/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["the Act"] registered with Police Station, Bahu Fort, Jammu. Prior to approaching this Court, the petitioner had moved a similar application before the Principal Sessions Judge, Jammu [hereinafter referred to as the "Trial Court"] where the trial against the petitioner is pending adjudication. The trial Court after appreciating the rival contentions did not find it a fit case to enlarge the petitioner on bail pending trial and as a result, rejected the application for bail filed by the petitioner vide its order dated 4th May, 2024 2 Bail App No.167/2024
2. Being dissatisfied and aggrieved by the order dated 4 th May, 2024 passed by the trial Court, the petitioner has filed the instant petition seeking indulgence of this Court to grant him bail in the aforementioned case.
3. The petitioner seeks his enlargement on bail primarily on the ground of prolonged incarceration.
4. The respondents have filed reply, in which it is stated that 12 bags of poppy straw (4 quintal in weight) was recovered on the search of the truck being driven by the petitioner when stopped by the naka party at Sunjwan Morh NHW on his way towards Channi. After detailed investigation, charge-sheet was laid before the trial Court on 01.10.2018. It is stated that recovery of such a large scale of narcotics disentitles the petitioner from seeking bail on the ground of alleged long incarceration. It is stated that owing to past conduct of the petitioner, when he was granted interim bail during Covid-19 pandemic and his subsequent declaration as absconder by the trial Court and procurement of his custody after three long years, disentitles him to seek concession of bail on any ground whatsoever.
5. Heard learned counsel for the parties and perused the material available on record.
6. It appears that initially the petitioner had approached the learned Trial Court for grant of bail but his attempt had failed, as his application 3 Bail App No.167/2024 was rejected vide order dated 4th May, 2024 passed by the Trial Court, copy whereof is on the record of the file.
7. As per the prosecution, 12 bags of poppy straw (406 kg), loaded in plastic and jute bags and kept in the truck loaded with fruit, was recovered when stopped by the naka party at Sunjwan Morh NHW on his way towards Channi. After conducting the investigation, charge-sheet was filed before the learned Trial Court on 01.10.2018. It appears that the charge against the petitioner under Section 8/15/29 NDPS Act stands framed against the accused including the petitioner herein and trial of the case is going on. It has come on record that till date nine prosecution witnesses have been examined before the Trial Court.
8. Contraband allegedly recovered from the vehicle driven by the petitioner involves about four quintals of poppy straw, which falls within the definition of commercial quantity, as such, rigors of Section 37 are attracted in the present case. It is unequivocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfill the conditions stipulated in Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under:
"37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for 4 Bail App No.167/2024 offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail."
9. The Supreme Court in the case of Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein has held as under:
"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."
10. The Supreme Court in the case of Mohd. Muslim @ State (NCT of Delhi, AIR 2023 SC 1648 has held that :
"23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"22 (also see Donald Clemmer‟s „The Prison Community‟ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/PSI- 2021/Executive_ncrb_Summary- 2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & 5 Bail App No.167/2024 Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."
11. A three-Judge Bench of the Supreme Court in case of Union of India v. K.A.Najeeb, (2021) 3 SCC 713 had considered the issue of long incarceration and the effect of Section 43-D(5) of the UAP Act and observed thus:-
"It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions 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. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
12. The Supreme Court in the case of Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51, expressed the opinion that Section 436A of the Code of Criminal Procedure, which requires inter alia the accused to be enlarged on bail if the trial is not 6 Bail App No.167/2024 concluded within specified period, would apply. The relevant portion of the judgment is extracted as under:-
"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigor imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigor, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
13. From the aforementioned judicial pronouncements, it becomes manifest that the right to a speedy trial is a fundamental right under Article 21 of the Constitution. Prolonged incarceration not only undermines this right but also the presumption of innocence. While the seriousness of the offence is a pertinent consideration, the delay in the trial cannot be overlooked. The State has not provided satisfactory reasons for the inordinate delay. The applicant has a constitutional right to a speedy trial, and the prolonged delay infringes upon this right. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under special enactments.
7 Bail App No.167/202414 In the present case, the petitioner was first taken into custody on 06.07.2018 and remained in custody till 03.02.2020, when he was released on interim bail. Thereafter, he failed to appear before the Trial Court and was declared an absconder. He was re-arrested on 17.12.2022 and has remained in custody since then. Out of fifteen witnesses, only nine have been examined so far. Although the offence is serious and the petitioner has prior criminal history, these factors alone cannot justify indefinite incarceration. The petitioner is a driver by profession and belongs to the economically weaker section. His prolonged incarceration affects his right to livelihood, family integrity, and societal reintegration. Further, the explanation submitted by the petitioner that he could not surrender before the trial Court due to the lockdown imposed during the COVID-19 pandemic cannot be lost sight of.a
15. The Supreme Court in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and another, 2024 INSC 645 has held that:
"19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea of bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be."8 Bail App No.167/2024
16. In the case of Legal Aid Committee (Representing Under trial Prisoners) v. Union of India, (1994) 6 SCC 731, it was held that undrtrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.
17 From the above judicial pronouncements, it is evident that the right to a speedy trial is an essential facet of Article 21 of the Constitution. While the gravity of the offence remains relevant, it cannot be the sole ground to deny bail where the trial is unduly delayed without satisfactory justification. In the present case, as noted earlier, the petitioner has undergone approximately four and a half years of custody. Though the petitioner did abscond after being released on interim bail, this can be addressed by imposing stringent conditions. 18 Having regard to the cumulative period of incarceration, delay in trial, and in light of the authoritative pronouncements noted above, this Court is of the opinion that the petitioner is entitled to be 9 Bail App No.167/2024 released on bail, subject to stringent conditions to ensure his presence during trial and prevent misuse of liberty. Accordingly, the petition is allowed and the petitioner is directed to be released on bail in case FIR No. 0177/2018 registered at Police Station, Bahu Fort, Jammu, subject to the following conditions:
(i) The petitioner shall furnish a personal bond to the tune of Rs. 1,00,000/- with two sureties of the like amount, to the satisfaction of the trial Court;
(ii). The petitioner shall not leave the territorial jurisdiction of the trial Court without its prior permission;
(iii). The petitioner shall appear before the trial Court on each date of hearing without fail;
(iv). The petitioner shall not directly or indirectly influence or intimidate any prosecution witness;
(v). The petitioner shall not commit any offence during the period of bail;
(vi). The petitioner shall report to the concerned police station once a week until further orders;
(vii). Any violation of the above conditions shall entitle the prosecution to seek cancellation of bail.
Disposed of accordingly.
(Moksha Khajuria Kazmi) Judge JAMMU.
23 .07.2025 Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No