STATE TIMES NEWS
JAMMU: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Sindhu Sharma and Justice Shahzad Azeem rejected the bail application of one Arshad Ahmed Allaie allegedly involved in narco-terrorism.
According to the police case that on May 27, 2019 at 2107 hours a written docket, endorsed by SI-Rahul Dogra, I/C PP Hari Market, Jammu, was received at Police Station City, Jammu to the effect that he had laid a Naka at Vivekananda Chowk, Jammu and during checking at about 1915 hours, one Creta Car (white colour without Number) was spotted coming from JP Chowk towards Dance Gate and when it was intercepted near Naka point by the police party, two persons were found to have been travelling and during questioning, the Driver disclosed his name as, Arshad Ahmed Allaie (appellant herein), while the other occupant disclosed his name as, Fayaz Ahmed Dar, residents of Shopian and Anantnag, respectively.
On checking of the vehicle, one polythene pink coloured bag containing about 260 gms heroine was found and also huge cash in the shape of bundles came to be recovered from the bag.
The judgment written by Justice Shahzad Azeem for Division Bench, after hearing Adv IH Bhat for the appellant whereas Sr. AAG Monika Kohli for the UT, observed that in view of the law governing the subject and material collected during investigation, so much so the evidence of the material witnesses so far recorded, we are satisfied that there is prima facie material on record indicating the complicity of the appellant in carrying out the alleged terrorist activities and drug trafficking so as to bring unrest within the country, therefore, at this stage indulgence is unwarranted.
For the aforementioned reasons, the bail plea of the appellant is rejected and, consequently, the appeal is dismissed.
DB further said that the observations made in this order are limited to the adjudication of the present bail application and shall not prejudice the merits of the case during trial.
Before parting, DB said that we are constrained to note that on going through the order dated October 24, 2024 whereby said Fiaz Ahmed was granted bail by the trial Court, despite recovered consignment of heroine weighing 260 gms falls within ambit of commercial quantity but there is no whisper as to whether or not same falls within commercial quantity, and thus attracts rigors of Sections 37 of NDPS Act.
In this regard, para 5 of order dated October24, 2024, is noteworthy, which for the facility of reference is reproduced hereunder:- “Perused the report, charge sheet particularly the charges against the applicant and charges against him are under Section 8/22/29 of NDPS Act and only 260 gms of heroine has been recovered from the possession of the accused on May 27, 2019 since then he is in custody.
He has been charged on June 2, 2022 and till date only 08 prosecution witnesses have been examined out of total 64. So, keeping in view the progress of recording of prosecution evidence, there is no prospect of the case concluding before 10 years from the date of occurrence.”
DB observed that the alleged recovery of heroine was 260 gms, which as per the table appended with the NDPS Act falls in entry 56 wherein 5 gms is a small quantity and 250 gms is shown as a commercial quantity. If this be the position then definitely the rigors of Section 37 of NDPS Act with all its rigor applies to the case. At the same time, the observation of the trial Court that there is no prospect of the conclusion of trial before 10 years is not only unwarranted, but is also in contravention to the circulars and notification issued by the High Court from time to time for speedy disposal of the cases.
DB further observed that the approach of the trial Court in granting bail to the co-accused without taking into consideration the mandatory requirement as envisaged under Section 37 of NDPS Act, calls for immediate remedial measures. Therefore, to that extent we deemed it proper that matter be placed before Chief Justice for desired action.
Nonetheless, DB also hold that the State is being represented by the prosecution, therefore, it was expected of the prosecution to have taken the appropriate legal recourse, but it appears that the prosecution too has slept over the matter. Therefore, to that extent we also recommend the matter be forwarded to the Director General of Police for taking appropriate remedial steps.
