Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Parihar refused bail to an accused under the NDPS Act, concluding that his continued custody could not be questioned on the ground of delay in the trial. The Court recorded that the case concerns alleged possession and transport of a commercial quantity of codeine phosphate cough syrup recovered from a vehicle in which the accused was travelling, and that he had earlier secured interim bail on medical grounds before absconding for about two-and-a-half years. Holding that this conduct made him solely responsible for the protracted proceedings, the Bench found that he could not invoke Article 21’s right to a speedy trial or rely on Supreme Court decisions on prolonged incarceration and rejected the bail application.

The petitioner sought enlargement on bail in a case arising from FIR No. 76/2019 under Sections 8, 21, 22 and 29 of the NDPS Act. He was arrested on 26.07.2019 and remained in custody except for a brief period when he was granted bail on medical grounds. During the pendency of the bail application, four of the ten listed prosecution witnesses were examined.

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The petitioner contended that the testimony of these witnesses contained no incriminating material. He submitted that 1160 bottles of a manufactured drug said to contain codeine phosphate had been recovered, but only two bottles were sent for expert examination, and therefore no commercial quantity could be attributed to him.

The respondents did not file a written reply. The Deputy Advocate General argued that the petitioner was found in possession of commercial quantity and that Section 37 of the NDPS Act barred the grant of bail. It was submitted that the petitioner earlier obtained medical bail but failed to surrender, causing delay in the trial. The trial court record showed that a police naka intercepted a truck in which the petitioner was seated, and four bags containing 1160 bottles of codeine phosphate syrup were recovered. The petitioner had absconded between 08.11.2021 and 03.07.2024 after being granted interim bail.

The Court recorded that “the petitioner was found travelling in the vehicle from which 1160 bottles of manufactured drugs were recovered” and that “he was present inside the vehicle” at the time of recovery. It stated that the forensic report confirmed that the seized bottles contained codeine phosphate, a narcotic substance prohibited under Section 8 of the NDPS Act unless duly permitted. It observed that the petitioner offered no explanation as to how the consignment came to be present in the vehicle. The Court referred to Section 37, noting that it “mandates that before bail can be granted… the accused must satisfy the twin conditions.” It quoted the Supreme Court in Kajad stating that “negation of bail is the rule and its grant an exception.”

Regarding the sampling issue, the Court stated that the petitioner’s contention about only two bottles being tested could not establish entitlement to bail. It recorded that in Kamran Gull, the absence of batch numbers was material, but distinguished the present case, noting that “once the lot number is recorded in the re-sealing order, the omission in the seizure memo does not prima facie establish that the samples were not from the same batch.” The Court recorded the respondents' reliance on Kashif, observing that procedural lapses regarding Section 52-A constituted “a mere procedural irregularity.”

On the argument of delayed trial, the Court recorded that the petitioner relied on Umar Riyaz, but held that circumstances in that case did not apply. It observed that the petitioner also relied on Mohd. Muslim and Supreme Court Legal Aid Committee, where prolonged incarceration was considered. It further stated that constitutional courts may grant bail when liberty is compromised, citing other decisions. However, it observed that “the legislative embargo under Section 37… must also be respected unless the conditions… are demonstrably satisfied.”

The Court recorded that the Special Judge, NDPS, Jammu was burdened with around 2000 cases, but observed that the petitioner had absconded from 08.11.2021 to 03.07.2024. It stated that his conduct “directly caused a delay in the trial.” It finally observed that the petitioner faced an offence carrying a minimum of ten years and that he had not undergone half of the sentence, nor shown a prima facie case of false implication.

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The Court issued its final direction stating: “the petitioner has failed to make out a case for the grant of bail, and his bail application is accordingly rejected. Disposed of as such, and a copy of the order be notified to the trial court.”

Advocates Representing the Parties

For the Petitioner: Mr. Koshal Parihar, Advocate
For the Respondents: Mr. Pawan Dev Singh, Deputy Advocate General

Case Title: Mohd Ashraf Wagay v. UT of J&K through SHO P/S Gangyal
Case Number: Bail App 167/2025
Bench: Justice Sanjay Parihar