‘Drug traffickers inflict a deadly blow to society’
Mohinder Verma
JAMMU, Nov 21: Reaffirming that prolonged incarceration and perceived trial delay cannot dilute the stringent mandate of Section 37 of the NDPS Act, the High Court of Jammu & Kashmir and Ladakh has held that bail in cases involving commercial quantity of contraband cannot be granted unless the twin statutory conditions are fully satisfied. Moreover, the High Court has observed that drug traffickers inflict a deadly blow on the youth and are a hazard to the society.
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The judgment was delivered by Justice Wasim Sadiq Nargal in a bail application arising from FIR No.292/2021 registered at Police Station Bijbehara (Anantnag) under Narcotics Drugs and Psychotropic Substances Act (NDPSA).
The petitioner, Shahnawaz Ahmad Dar of Bijbehara, was arrested in December 2021 after the police claimed recovery of commercial quantity contraband from his vehicle during a naka-checking operation. Samples were drawn and subsequently confirmed by the FSL to contain Chlorine Phosphate, a psychotropic substance.
A charge sheet was filed before the trial court where proceedings have significantly progressed. Out of 13 prosecution witnesses, 10 including the complainant, Executive Magistrate and FSL expert have already been examined.
Represented by Advocate Gowhar Majid Dalal with Advocate Ibrahim Mehraj, the petitioner argued that the recovery was vitiated due to non-compliance with mandatory provisions of the NDPS Act. Moreover, he contended that he has been in custody for more than four years and therefore entitled to bail on humanitarian as well as legal grounds.
The Government Advocate Ilyas Nazir Laway strongly opposed bail, arguing that recovery of commercial quantity is undisputed, making Section 37(1)(b) fully applicable. He submitted that alleged procedural lapses are issues of evidence appreciation, not grounds for bail. “The trial is progressing expeditiously and the defence is attempting to turn the bail hearing into a mini-trial”, he added.
After hearing counsels for the parties at length and perusal of material on record, Justice Wasim Sadiq Nargal observed, “the alleged recovery pertains to commercial quantity. Consequently, the statutory bar prescribed under Section 37 of the NDPS Act becomes applicable and the accused can be released on bail only if the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail as per section 37(1)(b)(ii) of the NDPS Act”.
“The material on record makes it evident that the accused has nowhere disputed the alleged recovery of contraband from his possession. No such material produced by the petitioner that could persuade the court to conclude that there exist reasonable grounds to believe that he is not guilty, especially in view of the fact that burden placed on the accused under this provision is a heavy and much stricter than the normal rules of bail”, Justice Nargal said.
Pointing towards the plea of petitioner that he has been in custody for more than four years having already undergoing more than one-third of the minimum sentence prescribed and continuance of the detention would impinge Article 21, the High Court said, “the record reveals that trial is now at an advanced stage”, adding “the right under Article 21 operates subject to the procedure prescribed by law and Section 37 of the NDPS Act constitutes such valid and stringent statutory procedure”.
“Where the Legislature, in its wisdom, has mandated the recording of specific satisfaction before granting bail in cases involving commercial quantity, the court cannot dilute or bypass these conditions on general notions of delay or liberty. Consequently, the continued custody of the petitioner, in the absence of satisfaction of the twin conditions, cannot be characterized violative of Article 21 of Constitution of India”, the High Court added.
Referring Supreme Court judgments, the High Court said, “mere prolonged detention, without satisfaction of pre-conditions, cannot be invoked to dilute or bypass the express legislative mandate. Accordingly, prolonged incarceration alone does not confer any entitlement to bail in derogation of the statutory embargo”, adding “prolonged incarceration and the likelihood of delay in trial was insufficient to override the statutory bar on granting bail in cases involving commercial quantity under the NDPS Act”.
Regarding issue of alleged discrepancies raised by the petitioner, Justice Nargal said, “such aspects relate to the appreciation of evidence and the assessment of witness credibility, which are matters to be examined during the course of trial”, adding “the court cannot lose sight of the wider societal implications of releasing an accused from whose possession commercial quantity of narcotic drugs has been recovered”.
“Offences of this nature are not confined to the individual lives but impacts society at large. Drug traffickers inflict a deadly blow on the youth and are a hazard to society. Their activities not only destroy individual lives but also undermine public health, erode family structures, fuel secondary crimes and threaten communities”, the High Court said, adding “granting bail in such cases without strict compliance with the statutory conditions creates a real and tangible risk of the accused returning to the same network and re-offending”.
Accordingly, the High Court dismissed the bail application with the direction to the trial court to proceed with the matter expeditiously and make necessary efforts to conclude the trial at the earliest, without unnecessary delay.
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