Gauhati High Court
Junush Khan vs The State Of Assam on 21 April, 2023
Page No.# 1/5
GAHC010080702023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1411/2023
JUNUSH KHAN
S/O ABDULLA LALJI
R/O YARIPOK BOSTI,
P.S. YARIPOK
DIST. THOUBAL, MANIPUR
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. M G SINGH
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
21.04.2023
Heard Mr. U.S. Borgohain, learned counsel for the accused petitioner as well
as Mr. B. Sarma, learned Addl. P.P., Assam appearing for the State respondent.
By this petition under Section 439 Cr.P.C., the accused/petitioner, namely
Page No.# 2/5
Junush Khan has prayed for grant of bail in connection N.D.P.S. Case No.
55/2021, pending in the Court of learned Addl. Sessions Judge, Dibrugarh
arising out of Dibrugarh P.S. Case No. 2036/2021 (corresponding to
G.R. Case No. 4136/2021) under Sections 21(c)/25/27A/29 of the
N.D.P.S. Act.
The scanned copy of case record along with case diary, as called for, is
placed before the Court.
Mr. U.S. Borgohain, learned counsel for the accused petitioner, submits
that the accused has been languishing in jail for 547 days despite being
innocent as no contraband was recovered and seized from his possession. Mr.
Borgohain further submits that 08(eight) out of 13(thirteen) prosecution
witnesses are examined so far by the learned trial court, but none of them has
implicated the accused with the alleged offences. Therefore, Mr. Borgohain
submits that if the accused is released on bail, he undertakes to continue to
appear before the learned trial Court.
Mr. B. Sarma, learned Additional Public Prosecutor, submits that the
accused petitioner and 04(four) others have been facing trial for alleged
offences under Sections 21(C)/29 of the N.D.P.S. Act and 8(eight) prosecution
witnesses out of 13 (thirteen) listed witnesses are examined. Mr. Sarma,
therefore, submits that in view of bar contained in section 37 of the N.D.P.S.
Act, the bail application of the accused, if accepted, may likely to hamper a
smooth trial of the remaining part of trial.
The case relates to recovery and seizure of 269 grams of heroin from the
joint possession of the accused persons.
A perusal of the case record reveals that the accused has been in judicial
Page No.# 3/5
custody since 22.10.2021, that is, for 547 days.
A perusal of the case record inter-alia, reveals that the learned trial court,
after perusal of the materials produced before it and hearing of both sides
framed charges under Sections 21(C)/28/29 of the N.D.P.S. Act against the
present accused and 4(four) others vide order, dated 05.03.2022. There is a list
of 13(thirteen) prosecution witnesses in the charge-sheet laid on 17.01.2022.
Thereafter, the prosecution examined 08(eight) witnesses despite 24 (twenty
four) dates were fixed for examination/cross examination of the witnesses by
the learned trial court. In such a sluggish trend of production of prosecution
witness for deposition, it can be presumed that there is no immediate prospect
of completion of trial of the case, which is certainly a violation of the accused's
right to speedy justice under Article 21 of the Constitution of India. On scrutiny
of the evidence of the prosecution witnesses, it can prima facie be said that
there are incriminating materials against the accused subject, of course, to final
outcome on completion of trial of the case. This Court is conscious of the bar in
granting bail to accused involved in trafficking of commercial quantity of drugs
provided in Section 37 of the N.D.P.S. Act.
In paragraphs 22 and 23 of the judgment rendered in Mohd Muslim
@Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s)
915/2023, the Hon'ble Supreme Court observed has herein below extracted:-
"22. The danger of unjust imprisonment, is that inmates are at risk of
"prisonisation" a term described by the Kerala High Court in A Convict Prisoner v.
State21 as"a radical transformation" whereby the prisoner:
"loses his identity. He is known by a number. He loses personal
possessions. He has no personal relationships. Psychological problems result
from loss of freedom, status, possessions, dignity any autonomy of personal life. The
inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by
ordinary standards. Self- perception changes."
Page No.# 4/5
23. There is a further danger of the prisoner turning to crime, "as
crime not only turns admirable, but the more professional the crime, more
honour is paid to the criminal"22[ Working Papers- Group on Prisons & Borstals
-1966 U.K.](also see Donald Clemmer's 'The Prison Community published in
1940 [Donald Clemmer, the Prison Community (1968) Holt, Rinehart & Winston,
which is referred to in Tomasz Sobecki, ' Donald Clemmer's Concept of
Prisonisation', available at
https://www.tkp.Edu.pl/wpcontent/uploads/2020/12/Sobecki_sklad.pdf(accessd
on 23 rd March, 2023)]). Incarceration has further deleterious effects - where
the accused belongs to the weakest economic strata: immediate loss of
livelihood, and in several cases, scattering of families as well as loss of family
bonds and alienation from society. The courts therefore, have to be sensitive to
these aspects (because in the event of an acquittal, the loss to the accused is
irreparable), and ensure that trials - especially in cases, where special laws
enact stringent provisions, are taken up and concluded speedily. "
For the reasons, set forth above, this Court is of the opinion that without
passing any comment on the evidence already recorded in the case, only on
consideration of the length of detention (547 days) and applying the ratio of the
judgment rendered in Mohd Muslim (supra), it is provided that the accused
petitioner, named above, shall be released on bail of Rs. 1,00,000/- (Rupees
one lakh) only with 2 (two) sureties of like amount to the satisfaction of the
learned Special Judge (NDPS Act), Dibrugarh subject to the following
conditions-
(i) That the accused petitioner shall continue to
appear before the learned trial court on all dates to be fixed from time to
time till the case is disposed of.
(ii) That the accused petitioner shall not directly or
indirectly make any inducement, threat or promise to the remaining listed
prosecution witnesses acquainted with the facts of the case so as to
dissuade them from disclosing such facts to the court.
Page No.# 5/5
(iii) That the accused petitioner shall refrain from
committing any similar offences in future, of which he is accused or
suspected of commission; and
(iv) That out of the two sureties, one must be a
government servant subject to verification of the relevant documents, if
deemed necessary and after such verification, the learned court below
shall return the original documents retaining legible scanned copy thereof
on record for future reference.
Be it mentioned here that breach of any of the above conditions of bail
shall render cancellation of the bail in accordance with law.
This disposes of the bail application.
JUDGE
Comparing Assistant
