Gauhati High Court
Raju Surin vs The State Of Assam on 14 August, 2023
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GAHC010087502023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1534/2023
RAJU SURIN
S/O LT. FRANCIS SURIN
R/O 2 NO. JOYHING
P.S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
STATE- ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR K THAKUR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 14.08.2023
Heard Mr. K. Thakur, learned counsel for the petitioner and Mr. P. S.
Lahkar, learned Addl. Public Prosecutor, Assam for the State respondent.
This application under Section 439 of the Code of Criminal Procedure,
1973 has been filed by the petitioner, namely, (1) Raju Surin, who was arrested
on 22.02.2022 in connection with Special (NDPS) Case No. 07/2022, arising out
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of Bihpuria P.S. Case No. 38/2022, u/s 20(c)/25/29 of the NDPS Act.
The accusation in this case is that on 22.02.2022, one Sri Nipon Gogoi, SI
of Police, of Banderdewa Police Outpost, lodged an FIR, before Officer-in-
Charge of Bihpuria Police Station, inter-alia, stating that on receipt of the
information from reliable sources, a search operation was conducted and 91.6
kgs of ganja was recovered from a vehicle, bearing Registration No.AR-02/8289,
which was driven by the present petitioner. On receipt of the said FIR, Bihpuria
P.S. Case No. 38/2022 was registered and investigation was initiated. After
completion of the investigation, charge sheet was laid on 04.04.2022 against
the present petitioner and the present petitioner is facing trial in the custody
since the date of his arrest, i.e. 22.02.2022.
Learned counsel for the petitioner has submitted that the car of the
petitioner was hired by a lady from Arunachal Pradesh and the bag, which
contained the suspected ganja, belonged to the said lady. It is also submitted
that though the charge-sheet was laid in this case on 04.04.2022, however, till
now, only one prosecution witness has been examined in the case and the
petitioner has been languishing behind the bar since last 538 days and also
submitted that on the ground of prolonged incarceration, the petitioner is
entitled to bail.
In support of his contention, learned counsel for the petitioner has cited
ruling of judgment in the case of Rabi Prakash -Vs- State of Odisha, reported in
2023 Live Law (SC) 533 and also in the case of Mohd. Muslim @ Hussain -Vs-
State (NCT of Delhi).
In Rabi Prakash (supra), the Hon'ble Supreme Court of India observed
that prolonged incarceration, generally militates against the most precious
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fundamental right guaranteed under Article 21 of the Constitution of India and,
in such a situation, the conditional liberty must override the statutory embargo
created under Section 37(1)(b)(ii) of the NDPS Act.
On the other hand, learned Public Prosecutor submits that since the
quantity of contraband (ganja) in the instant case is of commercial quantity, the
embargo of Section 37 of the NDPS Act is applicable in the instant case and on
that ground opposed the grant of bail to the present petitioner.
It is seen that in number of cases, involving commercial quantity of
contraband, the Supreme Court of India has granted bail to the accused
persons, mainly on the ground of prolonged incarceration. In the instant case
also, the petitioner has been detained behind the bar since last 538 days and
only one prosecution witness has been examined till now and it is unlikely that
trial of Special NDPS Case Case No. 07/2022 would culminate soon.
In the above circumstances, considering in the light of ruling of Hon'ble
Supreme Court of India, this Court is of the considered opinion that the
prolonged incarceration of 538 days under the attending circumstances of the
present case overrides the embargo of Section 37 of the NDPS Act, 1985.
Hence, the petitioner, namely, Raju Surin, is hereby allowed to go on bail
of Rs. 50,000/- with one surety of like amount to the satisfaction of the
learned Special Judge, North Lakhimpur subject to the following
conditions-
i) That the accused petitioner shall cooperate in his trial and
shall appear before the learned Trial Court as and when required;
and
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ii) That the accused 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 from
disclosing such facts to the learned Trial Court; and
iii) That the accused petitioner shall not indulge in the offence
similar to that with which he has been charged in the instant case.
With the above observations, the instant bail application is hereby
disposed of.
JUDGE
Comparing Assistant
