Page No.# 1/6 vs The Union Of India
2024 Latest Caselaw 5885 Gua

Gauhati High Court

Page No.# 1/6 vs The Union Of India on 14 August, 2024

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                         Page No.# 1/6

GAHC010148792024




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./2195/2024

            HARPAL SINGH AND ANR
            S/O LATE INDER SINGH, R/O WARD NO. 02, SIMBAL CAMP, NEAR POWER
            HOUSE, JAMMU-181101

            2: PRADIP NEPALI
             S/O SHRI TOP BAHADUR SARKI
             R/O WARD NO. 02
             JUNIYA
             07 SATYAWATI
             DISTT- GULMI
             NEPA

            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE STANDING COUNSEL, NARCOTIC CONTROL
            BUREAU (NCB), ZONAL UNIT, GUWAHATI


Advocate for the Petitioner   : MR. M BISWAS, A GHOSAL,J SINGPHO,MS. A K CHOPHI

Advocate for the Respondent : SC, NCB,




                                   BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                          ORDER

Date : 14.08.2024

Heard Mr. M.Biswas, learned counsel appearing for the accused petitioners as well as Ms. M. Deka, learned Standing Counsel, NCB.

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2. By this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioners namely, Harpal Singh and Pradip Nepali, have prayed for bail in connection with NDPS Case No. 40/2020(corresponding to NCB Crime No. 01/2020) under Section 20(b)(ii)(C) and 29 of NDPS Act, 1985, pending before the learned Additonal Sessions Judge (FTC) No. 3, Kamrup(M), Guwahati.

3. The case of the petitioner is that on 11.01.2020 at around 16 hrs one NCB official got information from a reliable source that three persons namely, Paramjeet Singh, Harpal Singh and Pradip Nepali were carrying huge quantity of Ganja inside their truck JK-02BS-8837. Accordingly, the NCB team intercepted the said truck and on being searched 38 packets of Ganja weighing around 384.800 kgs were recovered and a case was registered vide NDPS Case No.40/2020. Thereafter, the recovered ganja was seized and the accused petitioners were arrested.

4. The learned counsel for the petitioner submits that the accused/petitioners have been detained in custody since 11.01.2020. It is also submitted that out of 9 witnesses, 4 witnesses were examined and charge was framed on 17.08.2022. It is further submitted that while rejecting the bail application No. 3985/2023 filed by one of the petitioners Harpal Singh on 01.03.2024, this Court directed the learned trial court to expedite the matter and to take initiative to dispose of the matter early, if possible by fixing day to day hearing. Thereafter, more than four months have been elapsed but no other witnesses are examined and the trial is at the same stage. Under such backdrop, learned counsel for the petitioners has prayed that considering the period of detention, bail may be granted to the petitioners.

5. The learned counsel for the petitioners has submitted that there is little Page No.# 3/6

chance to convict the petitioners in this case as it is evident from the fact that the samples in the instant case were not drawn in front of the Magistrate as per Section 52 A of the NDPS Act.

The Hon'ble Supreme Court in the case of Union of India vs. Mohanlal reported in (2016) 3 SCC 379 held that it is mandatory to draw samples before a Magistrate.

6. By referring the judgment of Hon'ble Supreme court in the case of Rabi Prakash vs. state of Odisha reported in (2023) (O) Supreme 707 and Dhiraj Kumar Shukhla vs. State of U.P. vide SLP criminal No. 6690/2022, learned counsel for the petitioners has pointed out that the Hon'ble Supreme Court has held that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37 of the NDPS Act.

7. It is, therefore, prayed by learned counsel for the petitioners that considering the length of detention, the petitioners may be enlarged on bail.

8. Learned counsel for the petitioners also has relied on a case law- Simranjit Singh vs. State of Punjab, reported in 2023 SCC OnLine SC 906.

9. On the other hand, learned Standing counsel, NCB has vehemently opposed in granting bail to the petitioners on the ground that commercial quantity of ganja was seized from the vehicle in which the petitioners were travelling at the relevant time of the incident. It is also submitted that in spite of best efforts, the prosecution has failed to examine the remaining witnesses. Considering the gravity of the offence, bail may not be granted to the Page No.# 4/6

petitioners at this stage of trial.

10. I have perused the trial court record including the evidence of the witnesses which reveals that out of nine witnesses, only four witnesses were examined. The last witness was examined on 03.06.2023. It transpires that no witness was examined for last one year. No effective order was passed by the trial court regarding non-production of the witness on fixed date. It also appears from the record that the accused have been detained in custody for more than four years and six months. In spite of direction by this Court vide order dated 01.03.2024, the prosecution did not take so much of initiative to dispose of the matter early.

11. In the case of Union of India vs. K.A. Najeed reported in (2021) v. 3 SCC 713, the Hon'ble Supreme Court observed that:-

"12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005) 11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial....."

12. In the case of Satender Kumar Antil vs. Central Bureau of Investigation reported in (2022) (10) SCC 51, the Hon'ble Supreme Court observed that prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with Page No.# 5/6

respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:

"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

13. In view of the aforesaid legal mandates and considering the period of detention and lackadaisical attitude of the trial court as well as NCB, this Court is of the view that the accused/petitioners may be enlarged on bail.

14. Therefore, it is provided that the accused petitioners, named above, shall be released on bail of Rs. 1,00,000/- ( One Lakh) each with 2 (two) sureties each of like amount to the satisfaction of the learned Special Judge (NDPS Act) -cum- learned Additional Sessions Judge ( FTC) No.3, Kamrup (M) at Guwahati subject to the following conditions-

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i) That the accused petitioners 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; and

ii) That the accused petitioners shall not directly or indirectly make any inducement, threat or promise to any of the remaining prosecution witnesses; and

iii) That the accused petitioners shall refrain from committing any similar offences in future, of which he is suspected of commission; and

iv) That out of the two sureties, one must be a government servant of the State of Assam.

15. Breach of any of the above conditions of bail shall render cancellation of the bail in accordance with law.

16. This disposes of the bail application.

JUDGE

Comparing Assistant