Binud Deori vs The State Of Assam
2023 Latest Caselaw 2789 Gua

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GAHC010004952023




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./149/2023

            BINUD DEORI
            S/O MUKUT MOHAN DEORI
            R/O VILL-MAJAR CHAPARI
            P.S. BIHPURIA
            DIST. LAKHIMPUR, ASSAM
            PIN-784164



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. S CHOWDHURY

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

02.08.2023

1. Heard Mr. R. Sharmah, learned Amicus Curiae, who was appointed by this Court to defend the cause of the present petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor representing the State of Assam.

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2. This application under Section 439 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner, namely, Binud Deori who has been detained behind the bar since 21.02.2021 (890 days i.e. 2 years, 5 months and 10 days) in connection with Special (NDPS) Case No. 14/2021 corresponding to Chariduar P.S. Case No. 33/2021 under Section 20(b)(II)(c) of the NDPS Act, 1985.

3. The accusation against the present petitioner is that on 21.02.2021, one Pranjal Baruah lodged an FIR before the Officer-in-Charge of Chariduar Police Station, inter-alia, alleging that on that day at about 5.30 a.m., one Swift Desire bearing Registration No. AS-01-JC-4383 was intercepted during Naka checking in front of Chariduar Police Station and was seized. During search operation, sixteen packets of suspected ganja were recovered from the said car and the present petitioner who was the driver of the car was arrested and later on Chariduar P.S. Case No. 33/2021 was registered. Thereafter, investigation was initiated and charge-sheet was laid against the present petitioner under Section 20(b)(II)(c) of the NDPS Act, 1985 and trial was commenced.

4. Learned counsel for the petitioner has submitted that though the accused petitioner was arrested on 21.02.2021 and there are eight prosecution witnesses listed in the Column No. 6 of the charge-sheet, however, only three witnesses were examined till the filing of the instant bail application and considering the nature of the testimony of the witnesses who are already examined it is unlikely to result in conviction of the present petitioner.

5. The learned counsel for the petitioner has also submitted that though the instant case has been registered under Section 22(C) of the NDPS Act, 1985 for possession of commercial quantity of contraband by the petitioner, however, rigors of Section 37 of the NDPS Act, 1985 cannot abridge the right to Page No.# 3/7

life and personal liberty to which the petitioner is entitled to under Article 21 of the Constitution of India and in this regard learned counsel for the petitioner has cited a ruling of Hon'ble Supreme Court of India in " Mohd Muslim @ Hussain Versus State (NCT of Delhi)" reported in "2023 SCC Online SC 352" wherein the Hon'ble Supreme Court of India has observed as follows :-

"19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India V. Rattan Malik 19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (Ref. Satender Kumar Antil Supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves Page No.# 4/7

to be enlarged on bail."

6. The learned counsel for the petitioner has also cited the ruling of Supreme Court of India in " Rabi Prakash vs. The State of Odisha " [Order dated 13.07.2023 passed in Special Leave to Appeal (Crl) No(s). 4169/2023] wherein the Hon'ble Supreme Court had observed that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act, 1985.

7. The learned counsel for the petitioner has also submitted that in view of observations made by the Hon'ble Apex Court in "Mohd Muslim @ Hussain Versus State (NCT of Delhi) (Supra)", the court can look into the materials on record whenever the bail application is made to come to arrive at a primary satisfaction as to whether there are reasonable grounds for believing that the accused is not guilty of such offence and as to whether he is not likely to commit any such offence while on bail.

8. Learned counsel for the petitioner also cited a ruling of Hon'ble Supreme Court of India in " Union of India -Vs- Shiv Shanker Kesari" reported in "(2007) 7 SCC 798" wherein it was observed as follows:-

"11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction Page No.# 5/7

about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."

9. On the other hand, learned Additional Public Prosecutor has opposed the release of the present petitioner on bail on the ground that the quantity of contraband seized from the present petitioner is of commercial quantity and, hence, the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant case.

10. I have considered the submissions made by learned counsel for both sides and perused the materials available on record including scanned copy of the LCR.

11. Though, this instant case involves commercial quantity of Ganja and the charge has been framed against the present petitioner under Section 20(b) (II)(C) of the NDPS Act, 1985 and apparently the embargo of Section 37 appears to be applicable in the instant case. However, the present petitioner is detained behind the bar since 21.02.2021 (890 days i.e. 2 Years 5 Months 10 Ten days) and the trial is yet to be complete, hence his long incarceration becomes relevant while considering the instant bail application.

12. In the case of "Rabi Prakash vs. The State of Odisha " reported in "2023 LiveLaw (SC) 533" which has been cited by the learned counsel for the petitioner it was observed by the Hon'ble Supreme Court of India that "prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must Page No.# 6/7

override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act, 1985". Thus, if this Court comes to a finding that there is an undue delay in completion in trial and there is prolonged incarceration of the petitioner, he would be entitled to get bail on the ground of prolonged incarceration only as in case of such prolonged incarceration the right to life and personal liberty under Article 21 of the Constitution of India would outweigh the fetters imposed by Section 37 of the NDPS Act, 1985. Hon'ble Supreme Court of India in "Shariful Islam @ Sarif -Vs- State of West Bengal" [order dated 04.08.2022 in SLP (Crl.) No. 4173/2022] had granted bail to the accused on the ground of prolonged incarceration of 1 year 6 months. Similarly, in "Nitesh Adhikari -Vs- State of West Bengal" [order dated 04.05.2022 in SLP (Crl.) No. 5769/2022] Hon'ble Apex Court granted bail to the accused facing an accusation under Section 21(C) of the NDPS Act, 1985 on the ground of prolonged incarceration of 1 year 7 months.

13. In the instant case, the petitioner has been detained behind the bar for 2 years 5 months 10 days (890 days) and the trial is yet to conclude, therefore, this Court is of considered opinion that he is entitled to get bail only because of his prolonged incarceration and non-completion of trial.

14. In view of above, the petitioner, namely, Binud Deori is hereby allowed to be released on bail of Rs.50,000/- (Rupees Fifty Thousand) only with two sureties of like amount to the satisfaction of learned Special Judge, Sonitpur, Tezpur with following conditions:-

(i) The petitioner shall cooperate in his trial in Special (NDPS) Case No. 14/2021 and shall appear before the learned trial court as and when so required by learned trial court;

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(ii) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him or her from disclosing such facts before the trial court,

(iii) The petitioner shall refrain from committing any offence similar to one of which he is accused of, while on bail.

15. With the above observation, the instant bail application is disposed of.

JUDGE

Comparing Assistant