J&K&L High Court Denies Bail In NDPS Case; Says 32-Month Abscondence Bars Accused From Invoking Prolonged Incarceration Jurisprudence

The Jammu & Kashmir and Ladakh High Court refused to grant bail to an accused facing trial under the NDPS Act, holding that the delay in conclusion of the trial was entirely attributable to the accused himself, who absconded for nearly two-and-a-half years, thereby disabling him from invoking Article 21's right to speedy trial or relying on the Supreme Court's jurisprudence on prolonged incarceration.

A bench of Justice Sanjay Parihar, while dismissing the bail plea, emphasised that the constitutional protections discussed in Mohd. Muslim Hussain v. State (NCT of Delhi), Supreme Court Legal Aid Committee v. Union of India, K.A. Najeeb, and Satender Kumar Antil were unavailable to the petitioner because the factual conditions necessary to trigger those safeguards were not present in this case.

The Court underscored this distinction in clear terms, noting that “Such factors are absent here,” and delay was self-created since the petitioner absconded for 32 months.

The Court recorded that the petitioner was arrested on 26.07.2019 and charge-sheeted on 17.10.2019, after which he was granted interim bail. However, from 08.11.2021 until 03.07.2024 — nearly 32 months — he remained absconding, compelling the trial court to issue coercive processes and declare him an absconder.

Justice Parihar stated that the petitioner “absconded during this period, necessitating coercive measures and compelling the trial court to declare him an absconder… His conduct, therefore, directly caused a delay in the trial…”

In this backdrop, the Court held that the petitioner could not seek parity with precedents like Umar Riyaz, where the delay was attributable to the State. Here, “the delay is attributable entirely to the petitioner, disentitling him from claiming parity.”

The Court reaffirmed that offences involving commercial quantity attract the stringent embargo of Section 37 NDPS Act.

It held that bail could not be granted unless:

1. The accused has undergone at least one-half of the potential sentence, or

2. establishes a strong prima facie case of false implication or absence of conscious possession.

The petitioner met neither requirement; the Court observed, “The petitioner satisfies neither requirement… his prolonged abscondence… reflects a propensity to evade judicial process.”

The court acknowledged that the Supreme Court has repeatedly held that prolonged incarceration without meaningful trial progress violates Article 21. But these protections apply only when the delay is not caused by the accused.

Case-Title: Mohd Ashraf Wagay vs UT of J&K, 2025

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