TaxTMI 
TaxTMI 
2026 (6) TMI 694
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....lly signed by BORRA LM YALLI Date: 2036.05.18 17:23:33 IST concerns the propriety of smaller Benches progressively hollowing out the constitutional force of a larger Bench decision without ever expressly disagreeing with it. 3. The above question arises in the context of the challenge by the appellant to the judgment and order dated 19.08.2025 passed by the High Court of Jammu & Kashmir and Ladakh at Jammu (briefly the High Court' hereinafter) in Criminal Appeal (D.) No. 20/2024 (Syed Iftikhar Andrabi Vs. National Investigation Agency, Jammu). 3.1. It may be mentioned that by order dated 10.08.2024, the third Additional Sessions Judge, Jammu designated as the Special National Investigation Agency (NIA) Court rejected the bail application of the appellant in R.C. No. 03/2020/NIA/JMU registered under Sections 17, 38 and 40 of the Unlawful Activities (Prevention) Act, 1967 read with Sections 8, 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 120B of the Indian Penal Code, 1860 (IPC). By the impugned judgment and order dated 19.08.2025, the High Court upheld the order passed by the Special NIA Court and dismissed the appeal filed by....
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....hotropic Substances Act, 1985 (briefly 'the NDPS Act' hereinafter). The allegation in the FIR is that police during checking of the vehicles and pedestrians at Kuhroo Bridge stopped a white coloured vehicle (Creta model) without registration, which was on its way from Baramulla to Handwara. During checking of the vehicle, a black bag was found under the front seat of the vehicle. In the course of search of the recovered bag, a large number of Indian currency notes of 500 denomination were found; that apart, six packets of suspected narcotic substances were found from the dicky of the vehicle. The driver Abdul Momin was taken into custody. In connection with the aforesaid police case, appellant was brought to the police station for investigation whereafter he was arrested on 11.06.2020. As per the disclosure memo of the accused appellant, it is stated that during investigation of FIR No. 183/2020, the accused appellant in the presence of Handwara Police Special Investigation Team (SIT) disclosed that he had taken heroin from Abdul Momin Peer and that he could recover the same by pointing out. 5.5. It appears that Central Government vide letter dated 22.06.2020 directed th....
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....entioned that appellant-accused No. 2 worked as an overground worker for LeT and HM. Thus, appellant- accused No. 2 has been accused of committing offences under Sections 8, 21, 25 and 29 of the NDPS Act read with Sections 17, 38 and 48 of the Unlawful Activities (Prevention) Act, 1967 (briefly 'the UAP Act' hereinafter) read with Section 120B IPC. 5.7. Thereafter NIA filed supplementary chargesheets. 5.8. In the meanwhile, appellant sought for bail on medical grounds. Special NIA Court vide the order dated 04.01.2022 granted interim bail to the appellant on medical grounds initially till 23.01.2022 and, thereafter, extended upto 10.03.2022. On expiry of the bail period, appellant surrendered before the Special NIA Court on 10.03.2022. 5.9. Charge in this case was framed by the Special NIA Court on 15.11.2023. Insofar as the appellant is concerned, he has been charged with having committed offences under Sections 8, 21, 25 and 29 of the NDPS Act read with Sections 17, 38 and 40 of the UAP Act read with Section 120B IPC. 6. Appellant sought for regular bail before the Special NIA Court. However, the learned Special Judge vide the order dated 10.08.2024 rejected t....
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....e submits that rigors of bail under special criminal statutes will melt down when there is no likelihood of the trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. To support such a contention, he has cited examples of several accused persons incarcerated under special criminal statutes who have been granted bail by this Court considering their long incarceration. 9.2. Learned senior counsel also submits that the seriousness of the alleged offence cannot continue to be a dominant factor to be considered for bail in case of delay in conclusion of trial. Bail cannot be denied on the ground of seriousness of alleged offence when the accused has undergone prolonged incarceration and the trial is unlikely to be completed within a reasonable time. 9.3. Insofar as the present case is concerned, the impugned judgment and order erroneously attributes the delay in trial to the appellant which is contrary to the record. As a matter of fact, the trial court in orders dated 06.08.2025 and 07.08.2025 has recorded that the prosecution's failure to produce witnesses has delayed the tr....
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.... appellant. According to him, no prima-facie case has been made out against the appellant either under the UAP Act or under the NDPS Act. The alleged recovery of cash amounting to INR 35,17,970.00 and 3.2 Kgs of heroin pursuant to disclosure statement attributed to the appellant is legally inadmissible and wholly unsustainable for the following reasons: (i) the disclosure memo fails to specify the precise place of concealment and it only states I have taken narcotic substance from A-1. I can recover the same by pointing out. (ii) the disclosure memo is conspicuously silent with regard to the alleged recovery of cash rendering such recovery inadmissible in evidence and incapable of being attributed to the appellant. (iii) the alleged disclosure is not supported by any pointing-out memo duly signed by the accused and two independent witnesses. The alleged recovery, therefore, not being a direct consequence of the disclosure statement of the appellant under Section 27 of the Indian Evidence Act, 1872 is inadmissible qua the appellant. (iv) the site map and the recovery-cum-seizure memo do not have signatures of independent witnesses or even of the a....
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....ment made before the police and admittedly there has been no investigation in this regard. He submits that insofar as Mohd. Yusuf Geelani is concerned, he passed away in the year 2000 and in so far Mohd. Qasim Geelani is concerned, he is a government employee working as an Assistant Lineman in the Jal Shakti Department, Handwara. 9.11. The charge that the appellant is having link with the LeT/HM operative Wahid Geelani is based on the explanation memo of phone contacts and following the disclosure of the appellant himself before the police. Such an explanation memo is inadmissible in evidence, being in the nature of a confession before the police, thus, squarely prohibited under Section 25 of the Indian Evidence Act, 1872. Other than the appellant's confession before the police, there is no other material to show any linkage of the appellant with any terrorist. He submits that one of the phone numbers mentioned in the explanation memo is actually a toll free customer care number of Q Mobile, a network service provider. That apart, the CDR report of the electronic devices seized from the appellant reveals no terrorist connection; the CDR report which is part of the chargeshee....
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....ant. 10.3. Mr. Sanjay submits that at the instance of the appellant, cash amounting to Rs. 35,17,970.00 and three packets of heroin totaling 3.2 kgs were seized from the bedroom of accused No. 1. 10.4. It is submitted that during investigation, the mobile phones of the appellant were seized and sent to the appropriate authority in Delhi for data extraction. The extracted data was shown to the appellant who explained the various contacts appearing therein. The extracted data establishes his linkage with Pakistan based LeT/HM operatives. 10.5. Mr. Sanjay, learned Additional Solicitor General has referred to the statements made by various prosecution witnesses as well as the exhibited documents to drive home the point that the appellant was deeply connected with drugs related and terrorist activities. Even the approver i.e. accused No. 8 has named the appellant and has stated that the appellant provides money to LeT. 10.6. Insofar as the ground of delay in trial is concerned, Mr. Sanjay submits that there is as such no delay in the trial proceeding. If at all any delay has occurred, the same is purely attributable to the appellant who has been filing one application after ....
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....d No.5 and sister-in-law of accused No.1. Her account number showed transactions of around ninety lakhs of rupees in the year 2018 but she could not justify such transactions though she had no source of income being in the age group of 18-19 years. Ms. Syeda Faiqa Andrabi has stated that her account was being operated by her father i.e. by the appellant and her brother accused No. 5. Therefore, the submission is that all the accused persons are related and the appellant has been using the bank account of his daughter. However, on a query by the Bench, learned Additional Solicitor General submitted that the daughter of the appellant, Ms. Syeda Faiqa Andrabi, has not been made an accused in the case. 10.12. As regards the case of Islam-ul-Haq Peer, learned Additional Solicitor General submits that his case does not stand on the same footing as that of the appellant and, therefore, bail granted to the former would have no bearing on the case of the appellant. Principle of parity would not be applicable. 10.13. Finally, learned Additional Solicitor General submits that all endeavor would be made to expedite the trial which of course depends upon the co-operation of the appellant.....
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....ions, recovery or any overt act attributable to him. Holding that continued incarceration of the said accused would be inconsistent with the mandate of Article 21 of the Constitution of India, he has been enlarged on bail. 11.3. Learned senior counsel submits that while Mudasir Ahmed Dar (accused No. 12) was in custody for a period of 4 years 6 months at the time of grant of bail by the High Court, Amin Allaie (accused No. 13) had completed 5 years 1 month of incarceration. All the accused persons who have been granted bail till now have undergone lesser period of incarceration than the appellant facing similar accusations. Therefore, there is no reason why the appellant should be denied bail. 11.4. Learned senior counsel submits that the submission of learned Additional Solicitor General that the trial court should be directed to conclude the trial within a period of 1 year is wholly impractical considering the fact that more than 350 prosecution witnesses are yet to be examined. Placing reliance on the decisions of this Court in Roop Bahadur Magar alias Sanki alias Rabin Vs. State of West Bengal [2024 SCC OnLine SC 5575] and High Court Bar Association, Allahabad Vs. State o....
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....e which may extend to ten thousand rupees, or with both; where the contravention involves quantity which is lesser than commercial quantity but greater than small quantity, the offender shall be punished with RI for a term which may extend to ten years and with fine which may extend to one lakh rupees; but where the contravention involves commercial quantity, the offender shall be punished with RI for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. However, as per the proviso, the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 14.3. Section 25 deals with punishment for allowing premises etc. to be used for commission of an offence. Section 25 says that whoever being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of the NDPS Act, he shall be liable for punishment provided for that offence. 14.4....
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....nce punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 15. We may now turn to the UAP Act. Section 17 of the UAP Act provides for punishment for raising funds for terrorist act. It says that whoever in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to or raises or collects funds for any person or persons knowing that su....
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....coin or of any other material; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter- governmental organisation or any other person to do or abstain from doing any act; commits a terrorist act. 15.3. Offence relating to membership of a terrorist organization is dealt with in Section 38. Sub-section (1) says that a person, who associates himself, or professes to be associated with a terrorist organization with intention to further its activities, commits an offence relating to membership of a terrorist organization. The proviso....
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....9;cognizable offence', every case thereunder would be construed to be a 'cognizable case'. 15.8. Sub-section (5) of Section 43D deals with the provision for bail under the UAP Act. The said provision is extracted hereunder: 43D. Modified application of certain provisions of the Code .- *** *** *** *** *** (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. 15.9. As noticed above, sub-section (5) starts with a non-obstante clause. It says that notwithstanding anything contained in the CrPC, no person accused of an offence punishable under Chapters IV and VI of the UAP Act (which inclu....
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....th both. 17. The NIA Act has been enacted to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties etc. and for matters connected therewith or incidental thereto. 17.1. As per Section 11, the Central Government has been empowered to designate a Court of Session as a Special Court after consultation with the Chief Justice of the High Court for such area or areas or for such case or class or group of cases as may be specified in the notification that may be issued in this regard and published in the official gazette. 17.2. Section 21(1) says that notwithstanding anything contained in the CrPC, an appeal shall lie from any judgment, sentence or order not being an interlocutory order of a Special Court to the High Court both on facts and on law. 17.3. Sub-section (2) clarifies that every such appeal is required to be heard by a Bench of two Judges of the High Court. Such appeal should be disposed of as far as possible within a period of three months f....
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.... of the accused and the investigational rights of the agency. This Court emphasized that such balance must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case. 20.2. Observing that at the stage of granting bail, a detailed examination of the evidence and elaborate documentation and merits of the case is not warranted, this Court held that right to bail is not to be denied merely because of the sentiments of the community against the accused. In the facts of that case, it was found that NIA had submitted supplementary chargesheet which was at variance with the chargesheet filed by the Anti-Terrorist Squad (ATS) and that the trial was likely to take a long time with the appellant in prison for about 8 years and 8 months at that point of time. Appellant was therefore granted bail by this Court subject to certain conditions. 21. K.A. Najeeb is a three-Judge Bench decision of this Court. In that case, this Court was considering an appeal filed by the Union of India against bail granted by the High Court of Kerala to the accused facing trial for allegedly committing offences, amongst others, under Sections 16, ....
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....leted within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 21.4. It is crystal clear that the above was not an equitable exception laid down only with reference to the facts of that case, but was an authoritative declaration of a constitutional limitation on the operation of the statutory embargo of Section 43-D(5) itself. 21.5. While noting that the charges levelled against the respondent were grave and a serious threat to societal harmony, the three-Judge Bench observed that had it been a case at the threshold, perhaps the Court would have rejected the prayer for bail. However, keeping in mind the length of the period spent in custody and unlikelihood of the trial being completed any time soon, the bail granted by the High Court was not interfered with. This Court held thus: 18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against....
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....e that an accused is presumed to be innocent until proven guilty cannot be brushed aside likely, howsoever stringent a penal law may be. This Court held thus: 17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 23. Again in the case of Sheikh Javed Iqbal Vs. State of Uttar Pradesh [(2024) 8 SCC 293], this Court considered the order of the High Court of Judicature at Allahabad, Lucknow Bench rejecting the bail application of the appellant. Be it stated that the appellant was facing trial under various provisions of the IPC as well as under the UAP Act. 23.1. The Bench noted that the appellant was in custody for more than nine years and that evidence of only two witnesses had been recorded till that point of time. Therefore, the Court was of the opinion that a reasonable view could be taken ....
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.... would not come in the way of a constitutional court from granting bail to an accused if it finds that the right of the accused under Article 21 of the Constitution of India has been infringed. The Bench reiterated that the decision in K.A. Najeeb was rendered by a three-Judge Bench and, therefore, would be binding on a Bench of two Judges. It has been held as under: 42. This Court has, time and again, emphasised that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would ....
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....ree and a half years. While the chargesheet was submitted, charges were yet to be framed. There were as many as 159 witnesses cited. While granting bail to the petitioner, this Court observed thus: We do not undermine the seriousness of the alleged crime. We are mindful of the fact that the prosecution is for the offence punishable under Narcotic Drugs and Psychotropic Substances Act, 1985. At the same time, we should not overlook the fact that the petitioner is in judicial custody as an under-trial prisoner past 3 years and 6 months and prosecution intends to examine as many as 159 witnesses. Examination of 159 witnesses or even 50% of the same is going to take a pretty long time. At times, we wonder why prosecution wants to examine so many witnesses and thereby prolong the trial and delay the same. We have observed in number of orders that the prosecution should examine important witnesses and try to establish its case. There is no point in multiplying the witnesses on one and the same issue. 26. There are two judgments of this Court which we need to deal with before proceeding ahead. These two judgments, Gurwinder Singh Vs. State of Punjab [(2024) 5 SCC 403] and Gulf....
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....9;twin-prong test' of bail under the UAP Act. Interpreting Najeeb, the Court observed that the decision could not be read as mandating bail solely on account of prolonged incarceration. 27.2. In our view, the decision in Gurwinder inasmuch as it refuses to be bound by Najeeb, is difficult to be followed by us as a matter of precedent. It is plain that a judgment rendered by a Bench of lesser strength is bound by the law declared by a Bench of greater strength. Judicial discipline mandates that such binding precedent must either be followed or, in case of doubt, be referred to a larger Bench. A smaller Bench cannot dilute, circumvent, or disregard the ratio of a larger Bench. 27.3. With respect, the reliance placed by Gurwinder on Watali is difficult to justify in light of the subsequent treatment of Watali by this Court itself, firstly, by a Bench of a higher strength in Najeeb, and secondly, by a coordinate Bench of this Court in Sk. Javed Iqbal. 27.4. In Najeeb, this Court clarified that Watali arose in a very specific factual context where the High Court had effectively conducted a mini-trial by reappreciating evidence and determining admissibility issues at the sta....
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...., or the accused evading the trial by absconding etc. If this twin-prong test is accepted, the State need only satisfy a low prima facie threshold while the trial may continue for years with the result that pre-trial incarceration begins to acquire a post-trial punitive character and even then, no court could ever grant bail no matter the length of period of such incarceration because the case stood prima facie made out against the accused. A plain reading of Najeeb will show that it was trying to prevent precisely this possibility from arising when it cautioned that Section 43-D(5) must not become 'the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.' 27.9. Therefore, the caution of Najeeb is that continued incarceration cannot go unabated by a mere discharge by the State of the prima facie standard under Section 43-D(5). The judgment explicitly held that Section 43-D(5) will 'melt down' where prolonged incarceration and delayed trial produce a violation of Article 21. The constitutional inquiry in Najeeb therefore operated independent of, and notwithstanding, the statutory embargo of Section 43-D(5) in the realm of....
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....ed a batch of criminal appeals which challenged the common judgment and order of the High Court of Delhi affirming the rejection of the bail applications of the appellants by the Special Court. In Gulfisha Fatima, the appellants had been charged for committing various offences including offences under Sections 13, 16, 17 and 18 of the UAP Act. All the appellants were arrested on various dates in the year 2020 and have been in custody since the respective dates of their arrest. It was argued on behalf of the appellants that their prolonged incarceration coupled with the absence of any realistic prospect of early conclusion of trial rendered their continued detention constitutionally impermissible. It was in that context, that the two-Judge Bench posed the question, in prosecutions under the UAP Act when delay and prolonged incarceration are invoked as grounds for bail, what should be the principled approach of a constitutional court to examine such a plea? 28.1. The Bench referred to Article 21 and the right to speedy trial of an accused but observed that the constitutional promise under Article 21 is not that liberty will be unregulated but that deprivation of liberty will not b....
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.... further held that to read K.A. Najeeb as mandating bail solely on account of prolonged incarceration, irrespective of the statutory context or the nature of the allegations, would be to attribute to the decision a consequence it neither intended nor supports. Therefore, K.A. Najeeb cannot be used as a mathematical formula of universal application. 28.5. In the facts and circumstances of the case, this Court granted bail to five of the seven appellants but denied the same to two of the appellants taking the view that while the period of incarceration undergone by the two appellants is substantial, on the present record, their continued detention has not crossed the threshold of constitutional impermissibility so as to override the statutory embargo of Section 43D(5) of the UAP Act. 28.6. Underlying that the Court is mindful that pre- trial detention, even when justified by the statute, cannot be permitted to continue without regard to the progress of the trial, the Bench opined that on a completion of the examination of the protected witnesses relied upon by the prosecution or upon expiry of the period of one year from the date of the said order, whichever is earlier, the two....
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....ial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. In the facts of that case, this Court observed that it was conscious of the fact that the charges levelled against the accused were grave and a serious threat to societal harmony and had it been the case at the threshold, perhaps the Court would have outrightly rejected such a prayer. However, keeping in mind the duration of incarceration and the unlikelihood of the trial being completed in the near future, the accused had to be enlarged on bail. 32. The reasoning first in Gurwinder and then in Gulfisha Fatima, appears to proceed against something invented and then destroyed. We are constrained to reiterate that Najeeb was not warning courts against treating incarceration as the sole factor favouring bail. Instead, it was warning against treating the statutory embargo as the sole factor justifying continued detention by ignoring constitutional principles. Therefore, the subsequent reading that Najeeb does not create an automatic entitlement to bail on account of delay answers a proposition that Najeeb itself never advanced. ....
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.... of that particular case. 36. As we have noted above, several subsequent decisions of this Court, rendered after Gurwinder, have continued to apply the approach articulated in Najeeb in granting bail under the UAP Act on grounds of prolonged incarceration, gross delay in conclusion of trial, and the absence of any realistic possibility of the trial concluding in the near future. 37. The logic underlying all these judgments traces back to Najeeb, which is now the law of the land governing the grant of bail under the UAP Act in a situation of prolonged detention. In that context, it is noteworthy that while Gulfisha Fatima relied on Gurwinder to adopt a narrower reading of Najeeb, neither Gulfisha Fatima nor Gurwinder engage with this subsequent line of authority of case law. 38. Thus it is clear beyond doubt that the preference for bail, or the often invoked principle 'bail is the rule and jail is the exception' flows from the constitutional primacy of personal liberty under Article 21 and, therefore, cannot be displaced by legislation. 39. In that spirit, we make it clear that Najeeb is binding law entitled to the protection of stare decisis. It cannot be dilute....
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....s till the year 2023. The Hon'ble Minister furnished the state-wise and year-wise details of persons arrested and convicted under the UAP Act for the years 2019 to 2023. 42.1. From the details furnished, the following particulars regarding the number of persons arrested and convicted in India under the UAP Act during the period 2019- 23 emerges: Under the UAP Act (All India figures) YEAR PERSONS ARRESTED PERSONS CONVICTED PERCENTAGE OF CONVICTION 2019 1948 34 1.75 2020 1321 80 6.06 2021 1621 62 3.82 2022 2636 41 1.56 2023 2914 118 4.05 42.2. In so far the Union Territory of Jammu and Kashmir is concerned, the statistics read as under: Under the UAP Act (Jammu and Kashmir) YEAR PERSONS ARRESTED PERSONS CONVICTED PERCENTAGE OF CONVICTION 2019 227 0 0 2020 346 2 0.58 2021 645 0 0 2022 1238 11 0.89 2023 1206 10 0.83 42.3. Thus, from the aforesaid figures, it is evident that the country-wide percentage of conviction under the UAP Act for the five years comprising the period 2019-23 hovers between 2% to 6%. In other words, ther....
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....giving out of turn priority to certain cases should be best left to the courts concerned. Only in exceptional circumstances, an order fixing outer time limit for disposal of cases should be passed to meet extraordinary situations. Another reason for adopting such an approach is that not every litigant can approach the constitutional courts. Those litigants who can afford to approach the constitutional courts should not be allowed to take any undue advantage by getting an order directing out of turn disposal of their cases while other litigants patiently wait in the queue for their turn to come. Sounding a note of caution, this Court declared that courts which are superior in the judicial hierarchy should not interfere with the day- to-day functioning of the other courts by directing that only certain cases should be decided out of turn within a time frame. Relevant portion of the aforesaid decision are extracted as under: 41. Apart from dealing with huge arrears, our trial courts face the challenge of dealing with a large number of cases made time-bound by our constitutional courts. Therefore, in the ordinary course, the constitutional courts should not exercise the power ....
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....nary circumstances. 44. The above view has been reiterated by a two- Judge Bench of this Court in Rup Bahadur Magar. While granting bail to the appellants who had at that point of time undergone incarceration for a period of 2 years 9 months with large number of witnesses still to be examined, it has been held as under: 7. We have repeatedly observed that while rejecting bail applications, the High Courts are passing the orders directing disposal of trials within a time schedule. Apart from the fact that such directions are contrary to the law laid down by the Constitution Bench in the case of High Court Bar Association, such orders put undue pressure on the Trial Courts which are already flooded with a lot of work. Unless the factual situation is extra ordinary and exceptional, the High Courts should refrain from passing such orders, as held by the Constitution Bench in the aforesaid judgment. 45. Having surveyed and deliberated upon the relevant statutory provisions and the case laws, we may now deal with the case of the appellant. It was vehemently argued by learned senior counsel for the appellant that four of the co-accused have been granted bail; one by this Co....
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.... conscious possession of the contraband? As mere possession will not be considered as an offence unless it was coupled with the knowledge of what was being possessed. 17. Learned counsel for the Union of India has stated that besides 27 Memorandum, there is no independent evidence to establish, prima-facie, the mens rea of knowledge being possessed by the appellant herein with regard to the material he had concealed. 18. Taking into consideration, the argument put before this Court and the material placed on record, undisputed by the Union of India, and on a purely prima-facie standard of appreciation, this Court is of the opinion that the appeal be allowed. 48. Accused No. 12 also sought bail which was rejected by the Special NIA Court. However, the High Court in Mudasir Ahmad Dar, set aside the order of the Special NIA Court and granted bail to accused No. 12 Mudasir Ahmed Dar. Be it stated that the said appellant was arrested on 01.03.2021 and was in custody for a period of 4 years 6 months at the time of his release. The accusation against Mudasir Ahmed Dar is that he was actively engaged as a narcotic drug peddler providing logistic support to the co- accu....
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....case. The continued incarceration of the appellant, particularly in the backdrop of prolonged custody, would be inconsistent with the mandate of Article 21 of the Constitution, as recognized in K.A. Najeeb. 50. The core allegation against the appellant who is the accused No. 2 is that he is involved in narco-terrorism activities. He had confessed before the police on 11.06.2020 that he had taken heroin from accused No. 2 Abdul Momin Peer, who was the driver of the white-coloured vehicle from where a black bag was found containing cash and contraband. It is reported that appellant had disclosed before the Special Investigation Team (SIT) that he had taken heroin from accused No. 2 and that he could recover the same by pointing out. 50.1. On information provided by the appellant, cash amounting to Rs. 35,17,970.00 and three packets of heroin totaling 3.2 kgs were recovered from the bedroom of accused No. 1. 50.2. The phone numbers appearing in the two mobile phones of the appellant which were seized by the police establish his linkage with LeT/HM operatives like Wahid Geelani. 50.3. Appellant is a close relative of Mohd. Qasim Geelani and Mohd. Yusuf Geelani, who are curr....
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....o hold that the said disclosure statement made by the appellant has no evidentiary value. 51.2. According to the appellant, he has no link with either Mohd. Qasim Geelani or Mohd. Yusuf Geelani. The allegation of having such link has been constructed on the basis of appellant's alleged confession made before the police which is inadmissible in evidence. That apart, there has been no follow-up investigation in this regard, post his alleged confession before the police. In any view of the matter, Mohd. Qasim Geelani is a government employee working as an Assistant Lineman in the Jal Shakti Department, Handwara. On the other hand, in so far Mohd. Yusuf Geelani is concerned, he passed away in the year 2000. 51.3. Appellant has also denied having any linkage with LeT/HM operative Wahid Geelani. The charge of the appellant having such a link is on the basis of the explanation memo of phone contacts which is based on the disclosure of the appellant himself before the police. Such an explanation memo is inadmissible in evidence, being in the nature of a confession before the police; thus, squarely prohibited under Section 25 of the Indian Evidence Act, 1872. Other than appellant&....
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....e broadly noted the core charges against the appellant only with a view to contextualize the bail prayer of the appellant without expressing any opinion on the merits of those charges. 53. On due consideration, we are of the view that appellant has made out a case for grant of bail during pendency of the trial. We say so for the following reasons. 53.1. There is no recovery of cash and contraband from the person of the appellant or from the premises used by the appellant either as his residence or place of work. 53.2. All statements implicating the appellant have been made before the police including the confessions allegedly made by the appellant himself which prime facie are self-incriminating and hit by Section 25 of the Evidence Act, 1872. 53.3. Appellant has no prior antecedents of being connected with narcotic trade or in terrorist activities. At least, no such material has been placed on record. 53.4. On the contrary, it is stated that the appellant is an ardent advocate of the constitutional, federal and democratic set-up of India. He is a supporter of Jammu and Kashmir People's Conference, a registered mainstream political party. Following the abrogation....