Gauhati High Court
Abu Sufian vs The State Of Assam on 11 May, 2023
Page No.# 1/5
GAHC010065192023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1128/2023
ABU SUFIAN
S/O ABDUL KAYUM
VILL-MOINA
P.S. PATHERKANDI
DIST. KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. M A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
11.05.2023
Heard Mr. A. Ahmed, learned counsel appearing for the accused petitioner
as well as Mr. D.P. Goswami, learned Addl. P.P., Assam appearing for the State
respondent.
Page No.# 2/5
By this petition under Section 439 Cr.P.C., the accused-petitioner, namely
Abu Sufian has prayed for grant of bail in connection with Special (NDPS)
Case No. 45/2021 pending in the Court of learned Special Judge, Karimganj
arising out of Patherkandi P.S. Case No. 298/2021 under Section 21(C) of
the NDPS Act, 1985.
The scanned copy of case record, as called for, is placed before the Court.
Mr. A. Ahmed, learned counsel appearing for the accused petitioner,
submits that the accused has been in judicial custody for one year and eleven
months (720 days) without any progress in trial of the case since charges were
framed on 07.01.2022 and thereafter, twenty two dates were fixed for evidence.
Mr. Ahmed further submits that in most of the occasions, the summons were not
issued to the prosecution witnesses. According to Mr. Ahmed, although there is
a bar created by Section 37 of the N.D.P.S. Act, that by itself cannot abridge the
right created by Article 21 of the Constitution of India.
Opposing the bail application, Mr. D.P. Goswami, learned Addl. Public
Prosecutor, submits that the learned trial Court has framed charges under
Sections 21(C)/29 of the N.D.P.S. Act against the accused petitioner and another
for having possessed commercial quantity of Methamphetamine tablets on
07.01.2022. The case is presently pending at evidence stage and the learned
trial Court has been taking steps for summoning the witnesses. Mr. Goswami
further submits that in view of the bar under Section 37 of the N.D.P.S. Act, the
accused may not be released on bail.
The case relates to recovery and seizure of 16,000 WY tablets weighing
2.026 kg from the possession of the present petitioner and another.
It is noticed that the accused has been in custody since 21.05.2021.
Page No.# 3/5
A perusal of the case record reveals that the charge-sheet was laid under
Sections 22(C)/29 of the N.D.P.S. Act against the accused petitioner and another
vide order, dated 18.09.2021 and thereafter, the charges were accordingly
framed on 07.01.2022.
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.
In paragraph Nos. 22 and 23 of the judgment rendered in Mohd Muslim
@Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s)
915/2023, 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 23rd 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. "
Perused the order, dated 04.08.2022 passed in Shariful Islam @Sarif Vs.
Page No.# 4/5
State of W.B. in S.L.P. (Crl.) No. 4173/2022 by the Hon'ble Supreme Court
granting bail on the grounds of prolonged incarceration (1 year 6 months) and
there being no likelihood of completion of trial in the near future.
As submitted rightly by Mr. Ahmed, learned counsel for the accused
petitioner, although there is a bar created by Section 37 of the N.D.P.S. Act, that
by itself cannot abridge the right created by Article 21 of the Constitution of
India.
Therefore, it is provided that the accused petitioner, named above, shall
be released on bail of Rs. 1,00,000/- (Rupees One Lakh) only with two
sureties of like amount to the satisfaction of the learned Special Judge
(N.D.P.S. Act), Karimganj subject to the following conditions-
i) That the accused/petitioner 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/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 Court;
iii) That the accused/petitioner shall refrain from committing any
offences similar to the one of which he is accused; and
iv) That out of the two bailors, 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
Page No.# 5/5
on record for future reference.
Breach of any of the above conditions shall render cancellation of the bail
in accordance with law.
Copy of this order be furnished to the Registrar (Vigilance) and learned Public
Prosecutor, Gauhati High Court.
This disposes of the bail application.
JUDGE
Comparing Assistant
