SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has rejected the bail plea of an accused booked under the NDPS Act for alleged possession of 5.4 kilograms of charas, while directing the trial court to reconsider within 15 days its decision to indefinitely defer the trial and proceed in accordance with law.
Justice Rajnesh Oswal passed the order in a bail application filed by Afroz Ahmed Sheikh, a resident of Anantnag, who has remained in judicial custody since September 2020 in a case registered by the Narcotics Control Bureau (NCB), Jammu Zone.
The petitioner was represented by Advocate Prince Khanna, while Deputy Solicitor General of India Vishal Sharma, assisted by Central Government Standing Counsel Karan Sharma, appeared for the NCB.
The petitioner had sought bail primarily on the ground of prolonged incarceration, contending that he had spent nearly five years in custody while the trial remained incomplete. He argued that the prosecution had taken almost five years to examine only six witnesses and that after the prosecution evidence was closed and his statement under Section 313 CrPC was recorded, the case had reached the stage of final arguments. However, the trial court deferred final arguments after the prosecution informed it that a supplementary complaint had been filed against a co-accused.
The NCB opposed the bail plea, arguing that the recovery involved a commercial quantity of narcotic substance, attracting the stringent restrictions contained in Section 37 of the NDPS Act. It also relied on Supreme Court precedent to contend that prolonged custody alone cannot justify grant of bail in cases involving commercial quantities.
According to the prosecution, acting on secret information on September 28, 2020, an NCB team intercepted the petitioner at Parmandal Morh, Jammu, while he was travelling from Anantnag to Gujarat by bus. During the search, officers allegedly recovered 5.4 kilograms of charas concealed in his shoulder bag. Following investigation and receipt of the forensic report, a complaint was filed before the Special Judge, NDPS Cases, Jammu.
The High Court noted that the prosecution evidence against the petitioner had already concluded, his statement had been recorded, and the matter was ready for final arguments. However, the trial court mechanically deferred the proceedings after a supplementary complaint was filed against alleged co-accused Ghulam Mohiuddin Shah.
The Court observed that the supplementary complaint did not contain any fresh allegations against the petitioner and noted that even more than a year after its filing, the trial court had not heard arguments on charge or discharge in that complaint.
Criticising the manner in which the proceedings were deferred, Justice Oswal observed:
“This Court finds that the learned trial court has in mechanical manner has deferred the proceedings in the present complaint.”
The Court further held: “The learned trial court without formally adjudicating whether a deferment of proceedings was legally warranted, deferred the case against the petitioner in a mechanical manner. This decision was based solely on the submission of the learned SPP and an initial concession by the petitioner’s counsel, rather than a reasoned judicial determination.”
Referring to the Supreme Court judgment in Sukhpal Singh Khaira v. State of Punjab, the High Court observed that even where an additional accused is brought into proceedings, the trial court must decide whether the accused should face a joint or separate trial. If separate trials are warranted, there is no legal impediment to concluding the main case independently.
The Court held: “There exists no legal impediment preventing the trial Court from proceeding with the main case and adjudicating the same in accordance with law.”
Despite these findings, the Court declined to grant bail, observing that since it had already directed reconsideration of the deferment order, it would not be appropriate to enlarge the petitioner on bail at this stage.
The Court directed the Special Judge to re-examine the decision to defer proceedings in the complaint against the petitioner within 15 days and thereafter proceed in accordance with law. It further directed the trial court to conclude arguments on charge or discharge in the supplementary complaint against Ghulam Mohiuddin Shah within 30 days.
The High Court also clarified that if the trial court ultimately decides to continue deferring proceedings in the petitioner’s case, he would be at liberty to file a fresh bail application.
