Gauhati High Court
Hussain Ahmed vs The State Of Assam on 11 December, 2023
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GAHC010188752023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2979/2023
HUSSAIN AHMED
S/O LATE KHALILUR RAHMAN
R/O VIL- BALIA
P.S. NILAMBAZAR
DIST. KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY BY THE PP, ASSAM
Advocate for the Petitioner : MR. M AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
11.12.2023
Heard Mr M Ahmed, learned counsel for the petitioner, Hussain Ahmed. Also heard
Mr B B Gogoi, learned Additional Public Prosecutor for the State of Assam.
2. The petitioner has filed this application under Section 439 CrPC, with prayer for
bail as he is in jail since 28.10.2022 in connection with Special NDPS Case No.
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152/2022, arising out of Badarpur PS Case No. 250/2022, under Sections 22(c)/25/29 of
the NDPS Act, 1985.
3. The learned counsel for the petitioner has submitted that the petitioner is innocent.
He was the hired driver of the vehicle bearing Registration No. AS-10-D-7320. 48
packets weighing 621.09 grams of heroin was recovered from the vehicle. He was
driving the vehicle under the instructions of the owner, i.e., Afia Begum. He was
unaware that the passengers were carrying contraband
4. The learned Additional Public Prosecutor has raised serious objection stating that
the petitioner is complicit. He was travelling in a vehicle where a huge amount of heroin
more than 500 grams was recovered. Charge sheet has been laid against him as there
were incriminating materials found against him.
5. The learned Additional Public Prosecutor has prayed to reject the bail petition as
insulating the petitioner by an order of bail may adversely affect the trial. The petitioner
may tamper with the evidence. The embargo under Section 37 of the NDPS Act also acts
as a fetter to this bail application as he is booked under Section 22(C) of the NDPS Act.
6. The learned counsel for the petitioner has relied on the decision of Hon'ble the
Supreme in Rabi Prakash -vs- State of Odissa; reported in 2023 SCC OnLine SC
1109; in connection with Special Leave to Appeal (Crl.) No. 4169/2023. Vide Judgment
and Order dated 13.07.2023, it was observed that-
"4. As regard to the twin conditions contained in Section 37 of the NDPS
Act, learned counsel for the respondent - State has been duly heard. Thus, the
1st condition stands complied with. So far as the 2nd condition re: formation of
opinion as to whether there are reasonable grounds to believe that the
petitioner is not guilty, the same may not be formed at this stage when he has
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already spent more than three and a half years in custody. 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."
7. The judgment of a coordinate Bench of this Court in Bail Application No.
1128/2023 dated 11.05.2023 has also been referred to by the learned counsel for the
petitioner, whereby it has been observed that-
"Thereafter, however, not a single witness is examined by the prosecution
due to either non-issuance of summons by the prosecution or non-service of
summons. There is a list of 7(seven) witnesses in the charge sheet. There is no
evidence of criminal antecedence."
8. I have considered the submissions at the Bar with circumspection. I have also
perused the scanned copies of the LCR.
9. In this case too, not a single witness has been examined and the petitioner has been
in jail for 409 days.
10. I have considered the submission that the petitioner is the sole bread winner of the
family as mentioned in paragraph-10 of the petition.
11. Considering all aspects and in view of my foregoing discussions and also
considering the fact that not a single witness has been examined despite the fact that the
petitioner has been in jail for the last 409 days, petition is allowed. The petitioner is
enlarged on bail of Rs. 1,00,000/- (Rupees One Lac) only, with two suitable sureties of
the like amount, to the satisfaction of the learned Special Judge (NDPS), Karimganj,
under the conditions that:-
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i) the petitioner shall refrain from such activities with which he is alleged,
ii) the petitioner shall not default appearance and appear regularly,
iii) the petitioner shall not leave the jurisdiction of the Court without prior
permission from the jurisdictional Court, till completion of investigation.
On breach of any of the bail conditions, the bail order shall stand cancelled.
12. Bail Application stands disposed of.
JUDGE
Comparing Assistant
