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2023 Supreme(J&K) 673
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Javed Iqbal Wani, J
Nazir Ahmad Dar – Petitioner
Versus
UT of J&K – Respondent
Bail App. No. 166 of 2023
Decided On : 02-11-2023
Advocate Appeared:
For the Petitioner: B.K. Bhat.
For the Respondent: Dewakar Sharma.
The presumption of innocence is paramount; bail is the general rule, and imprisonment is an exception, emphasizing judicial discretion in light of trial delays.
Headnote:(A) NDPS Act, 1985 - Sections 8, 21, and 22 - Bail application preferred by accused for grant of bail in case arising from FIR No. 85/2018 for drug-related offences. The accused contends innocence and violation of rights due to delayed trial. Trial Court's previous bail application denied based on Sections 35 and 54. (Paras 1-2, 4-6)
(B) Legal principles of bail - The presumption of innocence prevails; bail is the rule and imprisonment the exception. Judicial discretion must consider the possibility of trial delay and ensure humane treatment for the accused. (Paras 9-10)
Facts of the case:
The accused was implicated three years after the event, with only two out of twenty-one witnesses examined. Claims of false involvement and no recovery from the accused were raised. The non-applicant did not file objections.
Findings of Court:
The application granted; accused admitted to bail on specified conditions due to prolonged incarceration without substantial evidence connection.
Issues: Whether the accused's rights were violated due to trial delays and if there was substantial evidence linking the accused to the offences.
Ratio Decidendi: The court emphasized that the right to bail is integral to the presumption of innocence and rejected vague allegations that undermined the accused's plea for bail.
Result: Application allowed; accused admitted to bail with conditions.
| Table of Content |
|---|
| 1. overview of the bail application and charges. (Para 1 , 2 , 3) |
| 2. arguments presented by both parties concerning bail. (Para 6 , 7 , 8) |
| 3. judicial observations on bail principles and discretion. (Para 9 , 10 , 11) |
| 4. final ruling on the bail application. (Para 12) |
JUDGMENT :
Javed Iqbal Wani, J
1. The instant bail application has been preferred by the accused petitioner for grant of bail in case arising out of FIR No. 85/2018 registered with Police Station Kathua for commission of offences punishable under section 8/21/22 of NDPS Act, 1985.
2. The facts emerging from the application would reveal that on 22.08.2018 a complaint came to be filed by one Sanjeev Singh Sen Inspector Task Force, Toll Post Udhampur with Sh. Kanwaljeet Shan, Sub-Inspector, Excise Department before Police Station Lakhanpur stating therein that on 21.08.2018 a vehicle bearing registration No. JK05E-3149 loaded with “Cinnamon” as declared goods of M/s J. Bhatt Enterprises Srinagar reported for assessment at Toll Post and during routine physical check by the Excise Team uptil 22.08.2018 the aforesaid vehicle came to be found carrying 4560 bottles of Chlorpheniramine Maleate and Codeine Phosphate Syrup drugs and approximately 2300 Kgs of banned polythene which came to be seized and consequently an FIR bearing Registration No. 85/2018 for commission of offences under section 8/21/22 NDPS Act, 1985, and Section 188 RPC came to be registered with Police Station Kathua without implicating the accused petitioner herein at that time as an accused and that during the course of investigation the accused petitioner was found involved in the case and came to be arrested on 05.02.2020 and that upon completion of the investigation, the charge sheet came to be laid before the Court of Sessions Judge Kathua on 02.05.2020.
3. It is being also stated in the application that the accused petitioner is an innocent person and is not involved in the commission of any offence covered in the charge sheet, but came to be implicated in the case falsely and that out of listed witnesses in the charge sheet only 2 witnesses have been examined by the trial Court without conducting the trial of the case speedily thus, violating the fundamental rights of the accused petitioner.
4. It is being further stated in the application that prior to the filing of the instant application, the accused petitioner had filed a bail application before the trial Court on 02.11.2022 which, however, came to be dismissed on 02.11.2022 itself on the premise of Sections 35 and 54 of the NDPS Act, 1985.
5. It is being next stated in the application by the accused petitioner that no recoveries alleged drugs were made from the accused petitioner and that accused petitioner has been connected with the commission of offences falsely, alleging to be the driver of the vehicle in question wherein the alleged recovery of the drugs were made, overlooking the fact that the accused petitioner does not possess the driving license and was not, as such, driver of the vehicle in question on the date of occurrence.
6. Objections to the application have not been filed by the non-applicants/respondents despite availing opportunities granted by this Court.
Heard counsel for the parties and perused the record.
7. Counsel for the accused petitioner while making his submissions in line with the contentions raised in the application would contend that the accused petitioner is an innocent and has been under incarceration for last more than three years in the case without there being any evidence or material connecting the accused petitioner with the commission of offences in question and would insist that the accused petitioner be granted bail, in view of the fact that ever since from the date of presentation of charge sheet on 02.05.2020 no substantial progress in the trial of the case has been made by the trial Court and as such, the delayed trial of the accused not attributable to the accused petitioner as well entitles th
