Jammu and Kashmir High Court questions trial court's decision to grant bail to narco-terror accused

The High Court of Jammu and Kashmir and Ladakh raised serious concerns over a trial court's decision to grant bail to a man accused of playing a role in a cross-border heroin trafficking racket, the proceeds of which were allegedly used to finance terrorism against India [Arshad Ahmed Allaie v/s U.T of J&K].

The Bench of Justices Sindhu Sharma and Shahzad Azeem has referred the matter to the Chief Justice of the Jammu and Kashmir High Court for appropriate remedial action.

The issue was flagged while considering the bail plea by one Arshad Ahmed Allaie, which the Court dismissed.

While hearing this bail plea, it was brought to the High Court's notice that a co-accused named Fayaz Ahmad Dar had been granted bail last year in the same case. The High Court questioned how Dar was granted bail, despite stringent requirements in the law governing the grant of bail in cases involving commercial quantities of illicit drugs.

"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 deem it proper that matter be placed before Lord Chief Justice for desired action," the High Court said.

The High Court also pulled up the prosecution for failing to challenge the trial court's bail order and directed that the matter be brought to the notice of the Director General of Police (DGP).

"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," the High Court said.

The case before the Court was tied to the 2019 interception of a vehicle at Vivekananda Chowk, Jammu, when 260 grams of heroin and ₹12 lakh in cash were recovered from the vehicle being driven by one Arshad Ahmed Allaie. Co-accused Fayaz Ahmad Dar was a passenger in the car.

The ensuing investigation revealed a sophisticated cross-border narco-terror network, with links to Pakistan-based terror operatives and drug smugglers.

The police alleged that Allaie received multiple heroin consignments that could be traced to Pakistan-based terrorists, and routed the drugs through a local network for sale. The proceeds from these sales were allegedly used to finance terrorism, including through Hawala transactions involving Hizbul Mujahideen operatives.

Allaie sought bail on the ground that there was a delay in the trial. He claimed that no witness statements recorded so far had implicated him. He added that co-accused, Fayaz Ahmad Dar, had already been granted bail by the trial court in October last year. Therefore, Allaie said that he too was entitled to bail.

The High Court, however, dismissed these arguments.

It noted that charges under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the Unlawful Activities (Prevention) Act, 1967 (UAPA) were framed against the Allaie as there was sufficient prima facie evidence to make out a case against him, including bank statements, call detail records, witness testimonies, and cash recovery.

The Court noted that since the case involves a commercial quantity of drugs, twin conditions under Section 37 of the NDPS Act and Section 43D(5) of the UAPA had to be satisfied for the grant of bail. The Court concluded that the present case was not fit for the grant of bail.

"Once the appellant (Allaie) is prima facie shown to have involved in such heinous crime, the law regarding the delayed trial or violation of constitutional right of having speedy trial would not come to his rescue, because enlargement in that event would necessarily fraught with danger of indulgence in such activities, particularly when non-state actors in control of all such alleged terrorist related activities and are operating from across the Border," it said.

While so, it also criticised the trial court's grant of bail to the co-accused, Fayaz Ahmad Dar. The High Court noted that the trial court had failed to apply Section 37 of the NDPS Act.

"In the case of Fiaz Ahmed, it appears that the trial Court while granting bail has observed the mandatory provision in breach and even did not bother to discuss the ground of its satisfaction despite rigors of Section 37 were applicable."

It added that the trial court was wrong to focus only on possible delays in the trial while granting Dar bail.

"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," it remarked.

Therefore, apart from rejecting Allaie's bail plea, the High Court also referred the order granting co-accused Fayaz Ahmad Dar bail to the Chief Justice and the DGP for corrective steps.

Advocate IH Bhat appeared for Allaie. Senior Additional Advocate General Monika Kohli appeared for the State.

[Read Order]