In Re : Nanki Yadav @ Mahanth Yadav vs Union Of India
2022 Latest Caselaw 1144 Cal

11.03.2022 Court No.32 rpan/07

C.R.M.8549 of 2021 In Re:- An application for bail under section 439 of the Code of Criminal Procedure ;

And In Re : Nanki Yadav @ Mahanth Yadav

- Petitioner

Mr. Sanat Kumar Das, Mr. Sujan Chatterjee ... for the Petitioner.

Mr. Bhaskar Prasad Banerjee ... for the Customs/Opposite Parties.

The present application under Section 439 of the Code of

Criminal Procedure has been preferred by the petitioner in

connection with Special Case No.50 of 2015 [Seizure Case

No.03/NDPS/CL/CUS/BDNPU/2015] dated 06.10.2015 under

Section 20(b)(ii)C of the Narcotic Drugs and Psychotropic

Substances Act, 1985.

Mr. Chatterjee, learned advocate appearing for the petitioner

submits that the petitioner is languishing in custody for about six

years and five months and there is also no possibility towards

conclusion of the trial in the near future. His prayer for bail was

last refused on 13th April, 2021 with a specific direction upon the

learned trial court to complete the examination of the witnesses

either physically or virtually within a period of six months. In

spite of such specific direction there had been no progress.

He further submits that deprivation of personal liberty

without ensuring speedy trial would not be in consonance with the

right guaranteed by Article 21 of the Constitution of India and in

the said conspectus further detention of the petitioner is not

warranted. In support of such contention, he placed reliance upon

the judgment delivered in the case of Supreme Court Legal Aid

Committee Vs. Union of India, reported in (1994) 6 SCC 731.

He further submits that the petitioner, if granted bail, would

be residing with his wife at Rajchandrapur, Sukantopally - 2,

Bally Ghoshpara, Police Station - Bally, District - Howrah. Let the

supplementary affidavit as filed, be kept on record.

Mr. Banerjee, learned advocate appearing for the Customs,

opposes the petitioner's prayer and submits that out of total seven

witnesses, two have already been examined. The delay which had

occurred is also not totally attributable to the prosecution.

Furthermore, the period of delay stands intervened by a period

lost due to the pandemics.

He further submits that Section 436-A of the Code of

Criminal Procedure has prescribed a period of half of the

maximum for which an under trial prisoner can be detained. The

said Section has been introduced subsequent to the judgment

delivered in the case of Supreme Court Legal Aid Committee

(Supra). The petitioner does not fulfil the condition as prescribed

under Section 436-A and as such he cannot be considered for

release on bail. In support of his contention, Mr. Banerjee has

placed reliance upon a judgment delivered in the case of Swapan

Mondal Vs. Narcotics Control Bureau, reported in 2022 SCC Online

Cal 241.

Pursuant to an earlier direction, Mr. Banerjee placed before

us a report dated 24th February, 2022 as regards the stage of the

trial. Let the same be kept on record.

A perusal of the said report reveals that from 2 nd July, 2016

till 17th April, 2022 no witness could be produced on 14 occasions

and during the said period only two witnesses could be examined.

The petitioner's prayer for bail was last rejected on 13 th April, 2021

directing inter alia as follows:

'The learned trial court is directed to fix schedule of at least four dates in a month for the next six months. In case the officers are not available the concerned superior shall appear before the learned trial court and give an explanation regarding the non-appearance of the witnesses. If required, the witnesses can make themselves available through video conference from the place of their posting. Learned trial court should take all efforts to secure the presence of the witnesses either physically or virtually and complete the evidence within the period of six months. In default, the petitioner will be at liberty to renew his payer for bail before this Court.'

The said order was passed on 13 th April, 2021 and we find

from the report that thereafter six dates were fixed before the

learned court below on and from 17 th April, 2021 till 20th January,

2022 but no witness was present on three occasions. No

explanation is also forthcoming as regards such absence of

witnesses.

The judgment delivered in the case of Swapan Mondal (supra)

is distinguishable on facts. In the said case prayer for bail was

rejected earlier on six occasions and the petitioner therein was in

custody for a period of more than five years and two months.

However, in the present case during the period from 2nd of July,

2016 till 20th of February, 2021, witnesses were not present on 14

occasions. The prayer for bail of the petitioner in the present case

was rejected once earlier and the directions contained in the order

refusing his earlier prayer for bail on 13 th April, 2021 had also not

been complied with.

It is no longer res integra that even in cases involving offences

under the NDPS, Act, which provides restrictions towards grant of

bail under Section 37, bail can be granted to an undertrial

prisoner, who has suffered half of the minimum punishment

prescribed and when the delay which has occurred is

substantially attributable to the State. In several cases, the

Hon'ble Supreme Court has granted bail owing to the long period

of incarceration and the unlikelihood of the trial being completed

any time in the near future. The exposition of Article 21 in the

case of Hussainara Khotoon and Ors. Vs. Home Secretary, State of

Bihar, Patna, reported in (1980) 1 SCC 81 was exhaustively

considered afresh in the case of Abdul Rehman Antulay and Ors.

Vs. R. S. Nayak and Anr., reported in (1992) 1 SCC 225 and it was

inter alia observed that a fair, just and reasonable procedure

implicit in Article 21 creates a right in favour of the accused to be

tried speedily and long delay may be taken as presumptive proof of

prejudice.

From the sequence of facts, it appears that the petitioner

cannot be held responsible for the delay which has occurred. He is

languishing in custody for more about six years five months and

there is no possibility towards early conclusion of the trial. The

directions contained in the order refusing the petitioner's earlier

prayer for bail on 13th April, 2021 had also not been complied with.

Applying the proposition of law, as laid down in the

judgments discussed above, to the facts of the present case, we

are of the opinion that further detention of the petitioner is not

necessary.

Accordingly, we allow this application and direct that the

petitioner, namely, Nanki Yadav @ Mahanth Yadav shall be

released on bail upon furnishing a bond rupees one lakh with two

sureties of like amount each, one of whom must be a local, to the

satisfaction of the learned Judge, 3 rd Special Court (NDPS Act),

Purba Bardhaman with further condition that he shall report to

the Superintendent of Customs, Burdwan, Burdwan Customs

Preventive Unit once a fortnight until further orders. The

petitioner shall also not leave the jurisdiction of Howrah district,

save and except for reporting to the Superintendent of Customs

and for attending the learned Trial Court on the dates specified for

hearing. He shall furnish his mobile number and also intimate the

address where he would be residing to the Superintendent of

Customs, Burdwan, Burdwan Customs Preventive Unit

immediately.

It is further directed that the petitioner shall not tamper with

the evidence and/or intimidate the witnesses in any manner

whatsoever.

In the event the petitioner fails to comply with the aforesaid

directions, without any justifiable cause, the learned court below

shall be at liberty to cancel his bail, in accordance with law,

without further reference to this Court.

With the aforesaid observations, the application for bail,

being CRM 8549 of 2021 is disposed of.

All parties shall act on the server copies of this order duly

downloaded from the official website of this Court.

(Sugato Majumdar, J.) (Tapabrata Chakraborty, J.)