Zameer Hussain Shah alias Zari Shah Versus The State through Advocate General Azad Jammu and Kashmir, Muzaffarabad

Raja Saeed Akram Khan, C. J.--- The captioned appeal by way of leave has been directed against the judgment of the High Court dated 03.05.2024, whereby, the application under section 426, Cr.P.C. filed by appellant, herein, has been rejected.

2. The gist of the facts is that the appellant, herein, filed an application before the High Court under Section 426 of the Code of Criminal Procedure, seeking suspension of the sentence imposed by the learned Additional District Judge, empowered as Judge Anti-Narcotics, Kotli. The appellant was convicted in connection with FIR No. 470/2019, registered at Police Station City Kotli, for an offence under Section 9-C of the Control of Narcotic Substances Act, and through the judgment dated 27.12.2023, was sentenced to four years of imprisonment along with a fine of Rs. 20,000/-. The respective parties submitted written arguments, which were duly examined by the learned High Court; however, upon meticulous consideration thereof, the application for suspension of sentence was dismissed. Aggrieved by such determination, the appellant has preferred the instant appeal by leave of the Court.

3. Sardar Shoukat Ali, the learned counsel for the appellant argued that the impugned judgment is contrary to law and record of the case. He added that the learned High Court failed to consider key aspects, and relevant case law. The claim that "no illegality was pointed out" is incorrect, as the petitioner raised multiple valid grounds, such as a short sentence, medical issues, doubts in the prosecution's case, and expected delay in appeal disposal. The petitioner is physically disabled, suffering from bedsores, and unable to manage daily tasks, justifying bail. Additionally, the prosecution's case has serious flaws, including the absence of a search warrant, non-involvement of lady police officials, and a five-day delay in sending samples for analysis. These issues were over looked making the impugned judgment legally unsustainable. The counsel for the appellant prayed for the acceptance of the appeal.

4. Conversely, Sheikh Masood Iqbal, the learned Advocate-General, strongly defended the impugned judgment, asserting that the High Court rightly dismissed the application after applying its judicial mind. He argued that a short sentence alone does not justify bail, especially in narcotics cases, where strict sentencing deters crime. He further added that alleged procedural lapses do not undermine the conviction, which is based on admissible evidence. The High Court did not find any special reasons to grant bail, so the judgment is legally strong and cannot be challenged.

5. We have heard the learned counsel for the parties and carefully examined the record of the case. The record reveals that the appellant was convicted under Section 9-C of the Control of Narcotic Substances Act (CNSA). The law mandates that upon successful prosecution, the court must impose the normal sentence, and any deviation by awarding a lesser punishment requires the presence of well-founded mitigating circumstances. However, in the present case, while the trial Court awarded a reduced sentence, therefore, the mere fact that a short sentence was imposed cannot serve as a valid ground for the bail of appellant.

6. Furthermore, the provisions of Section 426, Cr.P.C. do not grant an absolute right to bail upon conviction but rather require the demonstration of exceptional circumstances warranting the suspension of the sentence. The appellant has failed to establish any such compelling reasons that would justify interference at this stage. It is also pertinent to note that offences under Section 9-C fall within the ambit of special laws, which are to be interpreted and applied in accordance with their legislative intent rather than in light of general criminal jurisprudence. The provisions governing narcotics offences underscore the gravity of such crimes and necessitate a strict application of sentencing laws to serve as a deterrent.

7. The learned High Court has rightly observed that the statutory ground for bail under Section 426, Cr.P.C. becomes applicable only when an appeal remains pending for more than a year from the date of its institution. In the present case, the petitioner's appeal was filed on 10.01.2024, and there is no evidence to suggest any unreasonable delay in its adjudication. Since the statutory requirement of prolonged pendency has not been met, the petitioner is not entitled to be released on bail under the provisions of Section 426, Cr.P.C. The appellant has failed to point out any illegality in the impugned judgment of the High Corut.

What has been discussed above, finding no force, the instant appeal stands dismissed.

JK/27/SC (AJ&K) Appeal dismissed.