Gauhati High Court
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Page No.# 1/4
GAHC010245582022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3295/2022
ABDUL WAHAB @ ABDUL AHADA AND ANR
S/O KUDDUS ALI
VILL- GHUNIMARI
P.S. CHAPAR
DIST. DHUBRI, ASSAM
2: ABDUL SOBUR @ ABDUR SABUR
S/OMD. SAHED ALI SK
VILL- RAUMARI
P.S. CHAPAR
DIST. DHUBRI
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR Z HUSSAIN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 25.04.2023
Heard Mr. NJ Dutta, learned counsel appearing for the accused petitioners as well as Mr. R. J. Baruah,
learned Addl. P.P., Assam appearing for the State respondent.
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2. By this petition under Section 439 Cr.P.C., the accused-petitioners, namely, 1. Abdul Wahab @
Abdul Ahad and 2. Abdul Sobur @ Abdur Sabur have prayed for grant of bail in connection with
Special N.D.P.S. Case No.13/2021 arising out of Chapar PS Case No. 265/2021 under Section 22(C)
of the N.D.P.S. Act .
3. The scanned copy of case record along with case diary, as called for, is placed before the Court.
4. Mr. NJ Dutta, learned counsel for the accused petitioners, submits that the accused petitioners are
languishing in judicial custody for 685 days on charges of having possessed commercial quantity of
codeine phosphate based cough syrup bottles. Mr. Dutta submits that the charges under Section
22(c)/29 of the NDPS Act were framed on 07.10.2021 and thereafter 04(four) prosecution witnesses out
of 05(five) are examined despite learned trial court fixed 42 (forty two) dates for prosecution evidence.
Mr. Dutta further submits that as both the accused petitioners are resident under Chapar PS, there is no
chance of them jumping the course of trial if released on bail. In support of his submission, Mr. Dutta
relied on the ratio of the judgment rendered by the Hon'ble Supreme Court in the case of Mohd Muslim
@ Hussain Vs State (NCT of Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023 and two bail
orders passed by this Court in Bail Application 3154/2022 and Bail Application 3074/2022.
5. Opposing the bail application, Mr. R. J. Baruah, learned Additional Public Prosecutor, submits
that as the matter involves commercial quantity of drugs in view of the bar contained in Section 37 of
the NDPS Act in granting bail and the case being pending for examination of one PW, the bail
application of the accused petitioners may not be considered favourably.
6. The case relates to recovery and seizure of 46 Nos. of Cough syrup (OWNREX) bottles from the
present accused petitioners at Chapar Bazar, Beparlotti.
7. It is noticed that both the accused petitioners are in judicial custody sine 09.06.2021, that is , for
685 days.
8. A perusal of the case record reveals that charges under Sections 21(C)/29 of the N.D.P.S. Act
were framed by the learned trial court against both the accused petitioners vide order, dated
07.10.2021. The FSL report shows that samples of cough syrup bottles gave positive tests for Codeine
Phosphate present in each exhibit to be 198.7 mg.
9. On further scrutiny of the case record reveals that PW-1 was examined on 24.01.2022, PWs 2
and 3 on 21.03.2022 and PW-4 on 03.08.2022, that is intermittently after long gaps in between the
dates despite so many dates were fixed for evidence of the listed prosecution witnesses numbering only
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05(five). After 03.08.2022, no prosecution witnesses is examined till date despite the accused
petitioners are in jail custody.
10. There is no evidence of criminal antecedence of the accused petitioners.
11. In paragraphs 22 and 23 of the judgment in Mohd Muslim (supra), 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."
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(accessed 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. "
12. 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 (685 days)
and applying the ratio of the judgment rendered in Mohd Muslim (supra), it is provided that the
accused petitioners, named above, shall be released on bail of Rs. 1,00,000/- (Rupees one lakh) each
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with 2 (two) sureties of like amount to the satisfaction of the learned Special Judge (NDPS Act),
Bilasipara subject to the following conditions-
(i) That the accused petitioners 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 petitioners 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.
(iii) That the accused petitioners shall refrain from committing any similar offences
in future, of which they are 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.
13. 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
