Gauhati High Court
Shamil Uddin vs The State Of Assam on 3 August, 2023
Page No.# 1/5
GAHC010131282023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2098/2023
SHAMIL UDDIN
SON OF SHAYAB ALI,
RESIDENT OF VILL.- KABUL (DHUBRI),
P.S.- NILAMBAZAR, DISTRICT- KARIMGANJ,
ASSAM.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM.
Advocate for the Petitioner : MR. L R MAZUMDER
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
03.08.2023
1. Heard Mr. L. R. Mazumder, learned counsel for the petitioner as
well as Ms. S. H. Bora, learned Additional Public Prosecutor representing
State of Assam.
Page No.# 2/5
2. This bail application has been preferred under Section 439 of
Code of Criminal Procedure, 1973, praying for bail of petitioner, namely,
Shamil Uddin, who has been arrested on 13.11.2022 (263 days) in
connection with Bazaricherra P. S. Case No. 197/2022 under Section
21(C)/25/29 of the NDPS Act.
3. The accusation in this case is that on 11.11.2022, one Jyoti
Prasad, SI of Police, lodged an FIR before the Officer-in-Charge of
Bazaricherra Police Station, inter-alia, alleging that on 11.11.2022 at
about 4.00pm, on receipt of an information from reliable sources
regarding transportation of huge quantity of drugs, one naka checking
was conducted and one Mahindra Bolereo bearing Registration no. MZ
01 G 3542 was intercepted and approximately 1434.53 grams of
suspected heroin were seized therefrom and the present petitioner, who
was the driver of the said vehicle, was apprehended.
4. On receipt of the said FIR, Bazaricherra P. S. Case No.
197/2022 was registered and investigation was initiated. Ultimately, on
completion of investigation charge-sheet was laid against the present
petitioner along with co-accused persons under Section 21(C)/25/29 of
the NDPS Act and charges are yet been framed.
5. Learned counsel for the petitioner has submitted that the
petitioner is innocent and in no ways involved in the offence alleged
against him in the FIR. It is also submitted that the petitioner is a driver
by profession was not aware as to who kept suspected contraband in
Page No.# 3/5
his vehicle. Learned counsel for the petitioner has submitted that trial
has yet not began of the petitioner is languishing behind the bar since
13.11.2022 and hence, on the ground of prolong incarceration, hence,
he may be allowed to go on bail.
6. In support of his contention, learned counsel for the petitioner
has cited a ruling of Hon'ble Supreme Court of India in Shariful Islam
@ Sarif Vs. State of West Bengal (order dated 04.08.2022 in SLP
Criminal No. 4173/2022), wherein the accused was detained behind the
bar for one year six months and he was granted bail on the ground of
long incarceration.
7. Learned counsel for the petitioner has also cited an order of
the Co-ordinate Bench of this Court passed on 11.05.2023 in Bail
Application No. 1128/2023 in Abu Sufian Vs. State of Assam,
wherein on the ground of prolong incarceration of one year eleven
months, the accused was granted bail by this Court. In the same
ground, the learned counsel for the present petitioner has also prayed
for bail to the present petitioner.
8. On the other hand, learned Additional Public Prosecutor has
opposed the grant of bail to the present petitioner on the ground that
considering the quantity of contraband seized from the present
petitioner and considering the fact that the charge-sheet had been laid
only on 9th May 2023, this is not a case, where it may be said that due
to delay in trial, the petitioner is entitled to get bail. Learned Additional
Page No.# 4/5
Public Prosecutor has also submitted that considering the quantity of
contraband seized in this case, the detention of 263 days may not be
regarded as long incarceration, which may over ride the statutory
embargo of Section 37 of the NDPS Act, 1985.
9. I have considered the submissions made by learned counsel for
both sides and perused the materials available on record including the
scanned copy of Special (NDPS) Case No. 159/2022.
10. Though, the Hon'ble Supreme Court of India in several of its
judgment have observed that "prolonged incarceration, generally
militates against the most precious fundamental right guaranteed under
Article 21 of the Constitution and in case of prolong incarceration the
grant of bail on the ground of undue delay in trial cannot be said to be
fettered by Section 37 of the NDPS Act, 1985. However, the question
before this Court is as to what period may be regarded as prolong
incarceration if an accused has been detained in connection with an
offence involving commercial quantity of narcotic drugs and
psychotropic substance.
11. In the two cited cases by learned counsel for the petitioner,
wherein the accused persons were granted bail, they were under
custody for a period of one year six months and one year eleven
months, respectively. It has been seen in several such cases wherein
the accused persons are detained for one year six month or more in
connection with cases involving, commercial quantity of contraband
which attracts embargo of Section 37 of the NDPS Act, Hon'ble Apex
Page No.# 5/5
Court had granted bail only due to prolong incarceration. Apart from
the two ruling cited by learned counsel for the petitioner reference may
also be made to the case of "Nitesh Adhikari Vs. State of West
Bengal" (Order dated 04.05.2022 in SLP Criminal No. 5769/2022),
Hon'ble Apex Court granted bail to accused facing accusation under
Section 21 (c) of the NDPS Act, 1985 on the ground of incarceration of
one year seven months.
12. However, in the instant case, the accused has been detained for
lesser period and considering the quantity of contraband seized in this
case as well as considering the fact that the charge-sheet has been laid
only on 09.05.2023 and the trial is in its initial state, this Court is of
considered opinion that the period of incarceration of the present
petitioner may not be considered as long enough so as to override the
statutory embargo created under Section 37 of the NDPS Act, 1985.
13. Hence, the prayer for bail of the present petitioner is rejected at
this stage.
14. With the above observation, this bail application is accordingly,
disposed of.
JUDGE
Comparing Assistant
