Bail Rejected but Trial Court Told to Re-examine Indefinite Deferment in NDPS Case After Five Years in Custody
The J&K and Ladakh High Court declined bail to an NDPS accused held for five years but directed the trial court to reconsider its mechanical deferment of final arguments within 15 days, applying the Supreme Court’s guidelines on segregation of trial from Sukhpal Singh Khaira.
The High Court of Jammu & Kashmir and Ladakh at Jammu has rejected a bail application filed by Afroz Ahmed Sheikh, a 60-year-old man from District Anantnag who has been in judicial custody since his arrest on 29 September 2020 for allegedly carrying 5.4 kg of charas — a commercial quantity under the Narcotic Drugs and Psychotropic Substances Act, 1985. Justice Rajnesh Oswal, sitting singly, found that the trial court had deferred final arguments in the case in a mechanical manner, without any reasoned judicial determination, after a supplementary complaint was filed against a co-accused. While bail was refused because the High Court had formed the view that the trial court must first correct its procedural error, the court issued firm directions requiring that deferment to be re-examined within 15 days.
The Arrest and Proceedings Before the Trial Court
On 28 September 2020, intelligence officers of the Narcotics Control Bureau, Jammu, received information that Afroz Ahmed Sheikh was travelling from Anantnag to Surat, Gujarat, carrying narcotics concealed in a black shoulder bag. A team laid a checkpoint at Parmandal Morh, Jammu. At around 4:00 p.m., a bus bearing registration No. RJ-23PB-2067 was stopped. Sheikh, seated in Seat No. E (Sleeper Class), was found carrying five packets wrapped in brown tape. On opening them, charas in spherical form was recovered. The total weight, including packing material, was 5.5 kg; after removing the packing, the contraband weighed 5.4 kg.
The contraband was seized, a recovery-cum-seizure memo was prepared, and Sheikh’s statement was recorded under Section 67 of the NDPS Act. He was formally arrested on 29 September 2020 for offences under Sections 8, 20, 27-A, and 29 of the Act. Two representative samples of 24 grams each were drawn and sent for chemical examination. After the FSL report was received, a complaint was filed before the Principal Sessions Judge, Jammu on 25 March 2021. By order dated 27 July 2021, Sheikh was charged under Sections 8 and 20 of the NDPS Act.
The prosecution examined six witnesses over nearly five years. By order dated 6 November 2024, the prosecution evidence was formally closed. Sheikh’s statement under Section 313/342 Cr.P.C. was recorded on 9 December 2024. The matter was then posted for final arguments — the last stage before judgment.
How the Proceedings Came to a Halt
At this advanced stage, the Special Public Prosecutor informed the trial court that a supplementary complaint had been filed against a co-accused, Ghulam Mohudin Shah, on 11 March 2025. The supplementary complaint alleged that Sheikh had procured the charas from Shah — an allegation already present in the main complaint against Sheikh. No fresh allegations against Sheikh were added.
The trial court, acting on the SPP’s submission and an initial concession by Sheikh’s counsel, deferred the final arguments in Sheikh’s case indefinitely, pending the conclusion of proceedings against Shah. The High Court noted that this deferment was made without any formal adjudication of whether it was legally warranted. The trial court passed no reasoned order on whether a joint or separate trial was necessary.
The High Court also found a significant contradiction on the prosecution’s side. Having initially insisted that Sheikh’s case be deferred, the newly appointed Special Public Prosecutor subsequently sought time on 21 January 2026 and again on 17 February 2026 to argue the matter finally — effectively reversing the earlier position that had caused the deferment in the first place.
Meanwhile, Sheikh’s counsel, having initially conceded to the deferment, later realised that segregation of trial was the appropriate remedy. On 2 December 2025, an adjournment was sought before the trial court to move a formal motion for segregation of Sheikh’s trial from that of Shah. The High Court noted that as of the date of the judgment, the trial court had not even heard arguments on charge or discharge in the supplementary complaint against Shah.
The Legal Issue: Section 37 Rigour Against Prolonged Incarceration
Sheikh’s counsel, Mr. Prince Khanna, argued that the trial court had wrongly rejected the bail application on the sole ground that prolonged incarceration is a matter for a Constitutional Court, not a trial court. He contended that since prosecution evidence was concluded and Sheikh’s statement recorded, the trial was effectively over as far as Sheikh was concerned. Continued detention, he argued, amounted to pre-trial punishment.
The Narcotics Control Bureau, represented by Mr. Vishal Sharma, DSGI, with Mr. Karan Sharma, CGSC, opposed bail on the ground that the contraband fell within the commercial quantity category, attracting the mandatory rigours of Section 37 of the NDPS Act. Section 37 imposes a statutory embargo on bail in such cases unless the court is satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit an offence while on bail. The NCB relied on the Supreme Court’s judgment in Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613, which held that length of custody alone cannot be the sole ground for bail in NDPS cases involving commercial quantities.
The High Court’s Reasoning on Trial Segregation
Justice Oswal did not dispute that Section 37 imposes a stringent bar. The court’s concern was with the procedural basis on which the trial had been frozen. The High Court drew an analogy with the situation where a court summons an additional accused under Section 319 Cr.P.C. and applied the guidelines laid down by the Supreme Court in Sukhpal Singh Khaira v. The State of Punjab, 2022 INSC 1252.
Those guidelines require a trial court, upon deciding to summon an additional accused, to first determine whether the summoned accused is to be tried jointly or separately. If a separate trial is ordered, the court must proceed with and conclude the main case without impediment. The High Court held that this principle applied squarely to the present facts. By deferring Sheikh’s case pending Shah’s trial, the trial court had, in effect, impliedly directed a joint trial — but without any formal order or reasoning to that effect.
The court observed that the deferment was based solely on the SPP’s submission and an initial concession by the petitioner’s counsel, not on a reasoned judicial determination of whether deferment was necessary or permissible. The High Court held that there was no legal impediment to the trial court proceeding with and concluding the main complaint against Sheikh independently, particularly since the supplementary complaint against Shah contained no fresh allegations against Sheikh.
Justice Oswal expressed surprise that, despite the supplementary complaint against Shah being filed on 11 March 2025, the trial court had not heard arguments on charge or discharge in that complaint even by the date of the High Court’s judgment on 10 April 2026.
Why Bail Was Still Refused
Having found that the trial court must re-examine the deferment, Justice Oswal concluded that granting bail at this stage would be premature. The court reasoned that if the trial court, upon re-examination, decides to proceed with Sheikh’s case and concludes it expeditiously, the question of bail may not arise at all. Granting bail before the trial court corrects its procedural error would pre-empt that process.
The court also left open the possibility of a fresh bail application. If the trial court, after re-examination, again decides to defer Sheikh’s proceedings, Sheikh would be at liberty to approach the High Court afresh.
Order
Bail Application No. 272/2025 was rejected by order dated 10 April 2026. The trial court was directed to re-examine the issue of deferring the proceedings in the complaint against Afroz Ahmed Sheikh within 15 days from 10 April 2026 and thereafter proceed in accordance with law. If the trial court again decides to defer proceedings, Sheikh may file a fresh bail application.
Separately, the trial court was directed to conclude arguments on charge or discharge and pass appropriate orders in the supplementary complaint titled Narcotics Control Bureau v. Ghulam Mohiuddin Shah & Anr. within 30 days from 10 April 2026.
The record of the trial court was directed to be sent back forthwith along with a copy of the order for compliance. The order was marked as speaking and reportable.