Gauhati High Court
Sofiqul Islam Alias Safiqul Islam vs The Union Of India on 25 May, 2023
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GAHC010057002023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1060/2023
SOFIQUL ISLAM ALIAS SAFIQUL ISLAM
S/O LATE SUJAB ALI SARKAR
R/O SUBHSH NAGAR,
WARD NO. 12, AMCO ROAD,
P.S. DHUBRI, DIST. DHUBRI, ASSAM
VERSUS
THE UNION OF INDIA
REP. BY SC, NCB
Advocate for the Petitioner : MS. S K NARGIS
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 25.05.2023
Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Mr. S.C.
Keyal, learned Standing Counsel, NCB.
By this petition under Section 439 Cr.P.C., the petitioner, namely, Sofiqul Islam
@ Safiqul Islam, has prayed for grant of bail in connection with NDPS Case No.
60/2019 u/s 8(c)/21(C)/29 of the NDPS Act, arising out of NCB Crime No.
03/2019.
The scanned copy of the case record along with a detailed status report on trial
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of the case, as called for, is placed before this Court.
Ms. S. K. Nargis, learned counsel for the accused petitioner, submits that the
accused has been detained in judicial custody for 1227 days since 14.01.2020 despite
being innocent. Ms. Nargis further submits that the charges under Sections
21(c)/22(c)/29 of the NDPS Act were framed on 20.12.2021 and, thereafter, the
learned Trial Court has examined four prosecution witnesses till 27.01.2023 out of
eleven listed witnesses of the offence report. It has been submitted that two co-
accused persons are already enlarged on bail and, as such, maintaining parity in order,
the present accused petitioner, who is a local resident, may be directed to be released
on bail, subject to any condition.
In support of her submission, Ms. S. K. Nargis, learned counsel, has relied on
the judgments rendered by the Hon'ble Supreme Court in Mohd. Muslim -vs- State
(NCT of Delhi), reported in Manu /SC/0320/2023 and Sanjeev Chandra Agarwal and
Ors. -vs- Union of India (UOI) reported in Manu/SC/1140/2021.
Opposing the bail application, Mr. S. C. Keyal, learned Standing counsel for the
NCB, submits that four prosecution witnesses out of eleven listed witnesses were
examined in the case. Mr. Keyal further submits that the defence side is playing
delaying tactics and due to paucity of time, the learned Trial Court also could not
further examine and cross-examine the P.W.5 on two occasions. Mr. Keyal has also
read out the nature of implicating evidence collected by the NCB Investigating Officer
against the accused petitioner. Therefore, Mr. Keyal submits that the bail application of
the accused petitioner may be rejected.
The prosecution allegation is that 600 bottles of Relaxcof (Batch No. 19128- BG
141) and 1200 bottles of Recofex Codeine based Cough Syrup (Batch No. 02128 -
BG150) and 68 Gms. (758 Nos. tablets) of Methamphetamine tablets were recovered
and seized from one Renault Kwid Car bearing registration number AS26-B-5506 at
Barsajai, Lalmati, Near Maruti Suzuki Showroom along with the FIR named accused
persons, who were in the car at the time of the seizure on 01.03.2019.
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It is noticed that the accused petitioner has been in judicial custody since 14.01.2020,
i.e. for 1227 days.
A perusal of the case record reveals that the learned Trial Court framed charges
against the present accused and six others under Sections 21(c)/22(c)/29 of the NDPS
Act, vide order, dated 20.12.2021. Thereafter, the prosecution/NCB has examined five
witnesses out of eleven witnesses listed in the offence report. The aforesaid five
prosecution witnesses were examined during the period 29.01.2022 to 10.05.2023,
i.e. in a span of 1 year 3 months.
The case record reveals the status of trial of the case and the relevant portion is
extracted hereinbelow:-
Sl. Fixed for Summon to Steps taken by Witness remarks
No evidence on witness present or
issued on absent
1 17.01.2022 - - Absent Steps not taken
2 29.01.2022 - Ld. Spl. PP NCB 1 WITNESS PW1-Dhrubajyoti
Hazarika, retired Joint
Director, DPS, Kahilipara,
Assam
3 09.02.2022 - Ld. Spl. PP NCB Absent Witness Rakesh Ch.
Shukla and Tulika
Morang were absent with
steps showing cause of
absence. Rakesh Kumar
Shukla, Zonal Director
was in Imphal, Manipur
in connection with
meeting of Election
Commissioner of India
and Tulika Morang,
Superintendent was in a
review meeting on taking
over of caes from Bharat
Vision of the Hon'ble
Home Minister of India
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4 08.03.2022 Absent PW2, Rakesh Ch. Shukla,
Sonal Director, NCB
5. 24.03.2023 Absent Steps not taken
6 07.04.2022 Absent Summon to witness not
returned
7 28.04.2022 Absent Steps not taken
8 13.05.2022 Absent Witness absent with
steps showing casue of
absence
9 26.05.2022 Absent Steps not taken
10 09.06.2022 Absent Ld. Spl. PP, NCB prayed
for adjournment showing
cause of absence of the
witnesses Dilip Robi Das
and Phani Narjinary
11 06.07.2022 Absent Summon to witness not
returned
12 03.08.2022 Absent Steps not taken
13. 26.08.2022 Absent Steps not taken
14. 23.09.2022 Absent Summon to witness not
retuned
15. 21.10.2022 Absent Summon to witness not
retuned
16. 18.11.2022 Present One witness Mr. Hridiya
Nanda Mahanta, Drugs
Controller in Charge,
Office of the Health
Service, Guwahati,
Assam has appeared as
witness but Ld. Spl PP for
NCB has submitted that
the relevant document
was issued by Sri Ashim
Kumar aNath in the
capacity of Joint Drug
Controller, Hengarabari.
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Hence said Ashim Kumar
Nath may be summoned
to be examined as
prosecution witness.
17 15.12.2022 1 witness PW-3 Ashim Kumar Nath,
present retired Joint Drug
Controller cross
examination has been
deferred as prayed for by
the defence.
18 12.01.2023 Absent Steps not taken
19 27.01.2023 1 witness PW3 Ashim Kumar Nath,
present was present and cross
examined, and
discharged
20 09.02.2023 Absent Summon to witness not
returned
21 23.02.2023 Absent Steps not taken
22 21.03.2023 Absent Summon to witness not
returned
23 03.05.2023 2 witness PW4, Dilip Robi Das, is
present examined
24 10.05.2023 1 witness PW5, Phani Narjinary is
present further examined and
further examination is
deferred due to paucity
of time
25 11.05.2023 1 witness PW5, Phani Narjinary is
present further examined and
cross-examination is
deferred due to paucity
of time
26 07.06.2023 & Summon to witness
08.06.2023 issued to witness Phani
Narjinary and Tulika
Morang
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In paragraphs 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(ac
cessed on 23 rd 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. "
Further, a coordinate Bench of this Court in the case of Aminul Islam -vs- the
Narcotic Control Bureau passed in Bail Appl. No. 193/2023, has observed as
hereinbelow extracted:-
"................
23. Further, this Court is of the view that it is a settled position of law that in a
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case involving the NDPS Act, though the length of detention may be a relevant factor,
the same shall not be the sole factor for determining a bail application and various
other factors are taken into consideration like the quantity of the contraband, nature of
the substance, nature of involvement etc. In the present case, the contraband is a
commercial quantity and the substance is chemically manufactured drug. Moreover,
Section 37 of the NDPS Act lays down that before granting a bail, the relevant factors
are that the Court should come to a satisfaction that prima facie the petitioner is not
guilty of the offence and also the petitioner has to satisfy the Court that in case bail is
granted, he is not likely to commit further offence. The aforesaid two factors do not
seem to be fulfilled in the present case."
Now, upon consideration of the pros and cons of the evidence available on the
case record, this Court is of the opinion that on the ground of mere length of
detention, the accused petitioner cannot be enlarged on bail at the present crucial
stage of trial.
Therefore, the bail application stands rejected.
It is, however, provided that the learned Trial Court shall make an endeavour
to complete examination of the remaining NCB prosecution witnesses within a period
of three months from the date of receipt of a copy of this order, failing which, the
accused petitioner shall be released on bail, subject to stringent conditions, if applied
for.
Forward copy of this order to the Registrar (Vigilance); learned Trial Court and
the Zonal Director of NCB, Guwahati for information and necessary action, as directed
above.
Also furnish a copy of this order to Mr. S. C. Keyal, learned Standing Counsel
for NCB.
This disposes of the bail application.
JUDGE
Comparing Assistant
