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| HC denies bail to NDPS convict, says long jail stay alone cannot dilute section 37 RI | | | Early Times Report
JAMMU, May 4: The High Court of Jammu & Kashmir and Ladakh has refused to suspend the sentence of an NDPS convict and declined bail, holding that in cases involving commercial quantity of contraband, the stringent conditions under Section 37 of the NDPS Act cannot be bypassed merely on the ground of long incarceration.
Justice Sanjay Dhar dismissed the application filed by Bashir Ahmad Bhat, who had sought suspension of sentence and bail during pendency of his criminal appeal against conviction in FIR No. 230/2021 for offences under Section 8/15 NDPS Act. The applicant was represented by Mr. N. A. Ronga, Advocate, while the UT of J&K was represented by Mr. Ilyas Laway, Government Advocate.
The appellant had been convicted by the Special Judge, designated under the NDPS Act, Anantnag, for possessing commercial quantity of poppy straw. He was sentenced on October 27, 2025, to 10 years rigorous imprisonment and a fine of Rs 1 lakh, with a further one-year rigorous imprisonment in default of payment of fine.
As per the prosecution case, on August 19, 2021, police on routine patrolling at Dhonipora near National Highway crossing, Anantnag, intercepted an Alto 800 vehicle bearing registration No. JK18A-1097, which was proceeding from Anantnag towards Sangam. During search of the vehicle, police recovered five nylon bags concealed inside the vehicle, containing a total of 70 kilograms of poppy straw. The appellant was found to be in charge of the vehicle at the relevant time.
Seeking bail, the appellant argued that he was innocent, had a strong prima facie case in appeal and had already undergone more than four years of imprisonment. It was submitted that since the appeal may take time for final disposal, his sentence should be suspended and he should be released on bail.
The UT opposed the plea, arguing that the appellant stood convicted for possession of commercial quantity of contraband and, therefore, the bar under Section 37 of the NDPS Act was fully attracted. The prosecution contended that unless the court was satisfied that the convict was not guilty and was not likely to commit any offence while on bail, he could not be released.
The High Court observed that after conviction, the presumption of innocence no longer operates in the same manner as at the pre-trial stage. Relying on Supreme Court judgments, the court held that while suspension of sentence is legally permissible, it requires strong and compelling reasons, particularly in NDPS cases involving commercial quantity.
The court further noted that the police witnesses had supported the prosecution case and that, at the bail stage, no material contradictions were visible which could make the conviction unsustainable on a cursory reading. The court also rejected the contention regarding safe custody of the seized contraband, noting that the Special Judge had recorded that sealed samples were received by the FSL and seals were found intact.
On the argument regarding violation of Sections 42 and 50 of the NDPS Act, the High Court held that prima facie the case appeared to be one of chance recovery and not recovery based on prior information, and therefore Section 42 was not attracted. Similarly, since the recovery was from the vehicle and not from personal search of the appellant, Section 50 was also not attracted.
The court held that from an overall reading of the trial court judgment and prosecution evidence, it could not be said at this stage that the appellant was not guilty of the offence for which he had been convicted. Consequently, the mandatory conditions under Section 37 of the NDPS Act were not satisfied.
Dealing with the plea of long incarceration, the High Court observed that although the appellant had remained in custody for more than four years, that alone would not entitle him to bail unless it was shown that the appeal was unlikely to be heard in the near future. The court noted that the appellant's counsel was given an option to argue the main appeal finally, but he sought time to argue it.
Dismissing the application, the High Court granted liberty to the appellant to renew his prayer for suspension of sentence or bail if, for reasons not attributable to him, the appeal is not heard within the next six months. The court clarified that observations made in the order shall not be treated as an expression of opinion on the merits of the appeal.
(JNF) |
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