Gauhati High Court
Bail Appln./4224/2023 on 10 January, 2024
Page No.# 1/14
GAHC010259102023
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Bail Application No. 4224/2023
Biswajit Lahkar,
Son of Late Madhab Chandra Lahkar,
R/o- H. No. 7, Choudhury Lane, Bishnupur,
Gopinath Nagar, Guwahati, Kamrup (M),
PIN- 781006 (Assam)
..........Petitioner.
-Versus-
Union of India
(Represented by the Standing Counsel, NCB)
.........Opposite party.
Advocates for the petitioner : Ms S K Nargis,
Advocate for the respondent : Mr S C Keyal, SC, NCB.
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BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Order: 10.01.2024
ORDER
Heard Ms S K Nargis, learned counsel for the petitioner, Biswajit Lahkar
and Mr S C Keyal, learned Standing Counsel for NCB.
2. The petitioner has filed this application under Section 439 CrPC, with
prayer for bail as he is behind bars since 30.12.2019, in connection with
NDPS Case No. 37/2020, arising out of NCB Crime No. 19/2019, under
Sections 22(C)/29 of the NDPS Act, pending in the Court of learned
Additional Sessions Judge No. 3 (FTC)-cum- Special Judge, Kamrup (Metro).
3. The allegation against the petitioner is that the Intelligence Branch at
Guwahati received an information that on 27.12.2019, at about 07:30 hours,
Lambamayum Brojen Singh was approaching from Manipur on a tanker,
bearing Registration No. MN 06T 1240 with a consignment of
Methamphetamine Tablets to deliver the same to the present petitioner near
ISBT, at about 14:30 hours. The investigating team proceeded towards the
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place of occurrence (PO, for short), and kept vigil around the PO. At around
14:45 hours, one person alighted from one LPG tanker from the driver's seat
with a white coloured carry bag. Within few minutes, another person arrived
on a Hero duet, bearing Registration No. AS-01 DF- 1813 and both the
suspects engaged in a conversation. The driver of the vehicle handed over
the carry bag to the other person. When the other suspect was about to
place the carry bag in the storage area of the motorcycle, the NCB team
intercepted the suspects and after following all the formalities, carried out the
search operation. The bag marked as 'Khadim's' was recovered from the boot
space of the motor cycle. One cellotaped transparent polythene packet was
recovered and Methamphetamine tablets were recovered from the packet
(contraband, for short). Cash of Rs. 17,350 was also recovered. The person
who arrived in the Hero duet motorcycle is the present petitioner, Biswajit
Lahkar. After completion of investigation, offence report was submitted
against the present petitioner.
4. It is submitted by the learned counsel for the petitioner that 11
witnesses are enlisted in the offence report and only 6 witnesses out of the
11 witnesses have been examined. He has been behind bars for 4 years since
30.12.2019. The witnesses have not at all incriminated the petitioner. He has
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no relation with the other arrested accused, namely, Lambamayum Brojen
Singh, who has already been enlarged on bail by a coordinate Bench of this
Court in connection with Bail Application No. 3779/2023, vide order dated
10.10.2023. The petitioner has also prayed for bail on the ground of parity.
Apart from the length of detention, the petitioner has prayed for bail as his
minor daughter has to appear for her interview for admission in a reputed
school and the petitioner's presence is essential for the interview. The
petitioner's Aadhar Card, biometrics etc. has to be submitted for his
daughter's admission.
5. It is submitted that the petitioner will abide by any bail condition, he
being a law abiding citizen. The petitioner has pledged that he will not jump
over the bail. His right to personal liberty has been curtailed due to his
prolonged incarceration and due to procrastination of trial. The petitioner has
prayed for bail and has pledged to abide by any stringent conditions, if
imposed upon him.
5. The learned Standing Counsel, Mr S C Keyal has raised serious objection
against the bail petition.
6. It is submitted by the learned Standing Counsel, NCB that charge was
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framed on 11.01.2022 and six out of eleven witnesses were examined. There
was a delay in the trial as the Court was vacant till 1 st of November, 2021.
Now, as the problem of the vacancy has been addressed, trial is proceeding.
It is also submitted that trial had slackened during the pandemic.
7. Learned Standing Counsel, NCB, has submitted to reject the bail
petition, as the present petitioner is a history sheeter and the embargo under
Section 37 of the NDPS Act lies against him.
8. I have considered the submissions at the Bar with circumspection.
9. It is submitted on behalf of the petitioner that there is every possibility
that the petitioner will be acquitted from this case. Section 52 of the NDPS
Act was not complied with during search and seizure and sealing proceeding
was not proper. The embargo under Section 37 of the NDPS Act, rather
favours the petitioner, because there is every possibility that the petitioner
will be acquitted. The scooty seized in connection with this case does not
belong to the petitioner.
10. The learned counsel for the petitioner has relied on the decision of
Hon'ble the Supreme Court in Thana Singh-Vs- Central Bureau of
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Narcotics; reported in (2013) 2 SCC 590, wherein it has been held and
observed that-
"10. Between harmonizing the rights and duties of the accused and the victim,
the witness is often forgotten. No legal system can render justice if it is not
accompanied with a conducive environment that encourages and invites witnesses to
give testimony. The web of antagonistic litigation with its entangled threads of
investigation, cross-examination, dealings with the police etc., as it is, lacks the ability
to attract witnesses to participate in a process of justice; it is baffling that nonetheless,
systems of examination that sprout more disincentives for a witness to take the stand
are established. Often, conclusion of examination alone, keeping aside cross-
examination of witnesses, takes more than a day. Yet, they are not examined on
consecutive days, but on different dates spread out over months. This practice serves
as a huge inconvenience to a witness since he is repeatedly required to incur
expenditure on travel and logistics for appearance in hearings over a significant
period of time. Besides, it oten causes unnecessary repetition in terms of questioning
and answering, and also places greater reliance on one's ever-fading memory, than
necessary. All these factors together cause lengthier examinations that compound the
duration of trials.
11. It would be prudent to return to the erstwhile method of holding "session's
trials" i.e. conducting examination and cross-examination of a witness on consecutive
days over a block period of three to four days. This permits a witness to take the stand
after making one-time arrangements for travel and accommodation, after which, he is
liberated from his civil duties qua a particular case. Therefore, this Court directs the
concerned courts to adopt the method of "session's trials" and assign block dates for
examination of witnesses."
12. Learned counsel for the petitioner has submitted that this case has
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been procrastinated during trial also. It is not that the case has been
protracted by the pandemic. No endeavour was made by the learned trial
Court to examine the witnesses on consecutive dates over a block period of 3
to 4 days. Such an endeavour would have resulted in speedy disposal of the
case, without curtailing the fundamental right to liberty.
13. The learned counsel for the petitioner has also relied on the decision of
Hon'ble the Supreme Court in Mohd. Muslim -Vs- State of NCT, reported
in Manu/SC/0320/23, wherein it has been observed that-
"8. Ms. Tanya Agarwal, learned counsel appearing on behalf of the appellant,
urged that the period of long incarceration suffered, entitled the appellant to grant of
bail. Further, 34 more witnesses were yet to be examined, with little or no progress to
the trial since the High Court's direction to expedite the trial. It was also pointed out
that main accused Virender Singh @ Beerey and another co-accused Nepal Yadav,
had both already been granted bail by the High Court. Counsel urged bail on the
ground of parity.
**** **** **** **** ****
12. This court has to, therefore, consider the appellant's claim for bail, within
the framework of the NDPS Act, especially Section 37. In Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of India, this court made
certain crucial observations, which have a bearing on the present case while dealing
with denial of bail to those accused of offences under the NDPS Act:
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"On account of the strict language of the said provision very few persons
accused of certain offences under the Act could secure bail. Now to refuse bail
on the one hand and to delay trial of cases on the other is clearly unfair and
unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309
of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of
the statutory provision finding place in Section 37 of the Act prescribing the
conditions which have to be satisfied before a person accused of an offence
under the Act can be released. Indeed we have adverted to this section in the
earlier part of the judgment. We have also kept in mind the interpretation
placed on a similar provision in Section 20 of the TADA Act by the Constitution
Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this
provision, we have directed as above mainly at the call of Article 21 as the right
to speedy trial may even require in some cases quashing of a criminal
proceeding altogether, as held by a Constitution Bench of this Court in A.R.
Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release on bail, which can be taken
to be embedded in the right of speedy trial, may, in some cases be the demand
of Article 21. As we have not felt inclined to accept the extreme submission of
quashing the proceedings and setting free the accused whose trials have been
delayed beyond reasonable time for reasons already alluded to, we have felt
that deprivation of the personal liberty without ensuring speedy trial would also
not be in consonance with the right guaranteed by Article 21. Of course, some
amount of deprivation of personal liberty cannot be avoided in such cases; but
if the period of deprivation pending trial becomes unduly long, the fairness
assured by Article 21 would receive a jolt. It is because of this that we have felt
that after the accused persons have suffered imprisonment which is half of the
maximum punishment provided for the offence, any further deprivation of
personal liberty would be violative of the fundamental right visualised by
Article 21, which has to be telescoped with the right guaranteed by Article 14
which also promises justness, fairness and reasonableness in procedural
matters.".
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14. On the contrary, the learned Standing Counsel has submitted that the
ground of parity is not applicable to the present petitioner, who is a history
sheeter and there is every likelihood that this petitioner may jump bail and
will not hesitate to commit a similar offence. The learned Standing Counsel
has relied on the decision of Hon'ble the Supreme Court in Niranjan
Hemchandra Sashittal vs- State of Maharashtra; reported in (2013) 4
SCC 642, wherein it has been held that-
"21. It is perceivable that delay has occurred due to dilatory tactics adopted by the
accused, laxity on the part of the prosecution and faults on the part of the system, i.e., to keep
the court vacant. It is also interesting to note that though there was no order directing stay of
the proceedings before the trial court, yet at the instance of the accused, adjournments were
sought. After the High Court clarified the position, the accused, by exhibition of inherent
proclivity, sought adjournment and filed miscellaneous applications for prolonging the trial,
possibly harbouring the notion that asking for adjournment is a right of the accused and
filing applications is his unexceptional legal right. When we say so, we may not be
understood to have said that the accused is debarred in law to file applications, but when
delay is caused on the said score, he cannot advance a plea that the delay in trial has caused
colossal hardship and agony warranting quashment of the entire criminal proceeding. In the
present case, as has been stated earlier, the accused, as alleged, had acquired assets worth
Rs. 33.44 lacs. The value of the said amount at the time of launching of the prosecution has
to be kept in mind. It can be stated with absolute assurance that the tendency to abuse the
official position has spread like an epidemic and has shown its propensity making the
collective to believe that unless bribe is given, the work may not be done. To put it differently,
giving bribe, whether in cash or in kind, may become the "mantra" of the people. We may
hasten to add, some citizens do protest but the said protest may not inspire others to follow
the path of sacredness of boldness and sacrosanctity of courage. Many may try to deviate.
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This deviation is against the social and national interest. Thus, we are disposed to think that
the balance to continue the proceeding against the accused-appellants tilts in favour of the
prosecution and, hence, we are not inclined to exercise the jurisdiction under Article 32 of
the Constitution to quash the proceedings. However, the learned Special Judge is directed to
dispose of the trial by the end of December, 2013 positively.
15. The learned Standing Counsel has also relied on the decision of a
coordinate Bench of this Court in Aminul Islam -Vs- NCB, Guwahati
Zonal Unit; 2023 0 Supreme (Gau) 70, wherein it has been observed
that-
"32. Though length of detention may be one of the factor in consideration the prayer
for bail, the same cannot be the sole factor more so when all the requirement of Section 37 of
the Act are not fulfilled.
33. In the case of Chandrakeshwar Prasad Vs. State of Bihar, reported in (2016) 9
SCC 443 (Popularly known as Md. Sahabuddin Case), the Hon'ble Supreme Court has laid
down in clear terms that interest of the society is a relevant factor to be taken into account
while considering the prayer for bail. For ready reference, the relevant paragraphs of the
said case are extracted hereinbelow:
"10. This Court in Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its
Director (2007) 1 SCC 70 balanced the fundamental right to individual liberty with
the interest of the society in the following terms in paragraph 16 thereof: "We are of
the opinion that while it is true that Article 21 is of great importance because it
enshrines the fundamental right to individual liberty, but at the same time a balance
has to be struck between the right to individual liberty and the interest of society. No
right can be absolute, and reasonable restrictions can be placed on them. While it is
true that one of the considerations in deciding whether to grant bail to an accused or
not is whether he has been in jail for a long time, the court has also to take into
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consideration other facts and circumstances, such as the interest of the society."
34. In that view of the matter and also taking into consideration the very object of the
enactment, namely to curb the menace of drugs and its ill effects on the society which has the
propensity to destroy the generation as a whole, this Court is of the opinion that no case for
grant of bail is made out at this stage. Accordingly, the same stands rejected."
16. The learned counsel for the petitioner has submitted that the Aminul
Islam's case (supra), is under challenge before the Hon'ble Supreme
Court. It is also submitted by the learned counsel for the petitioner that the
learned Standing Counsel for the respondent has relied on a decision relating
to a case under the Prevention of Corruption Act, 1988, in Niranjan
Hemchandra Sashittal (supra).
17. I have given my thoughtful consideration to the submissions at the Bar.
18. I have also relied on the decisions referred to by the learned counsel
for both the sides.
19. It is true that delay can be caused by dilatory tactics adopted by the
accused, laxity on the part of the prosecution and faults on the part of the
system, i.e., to keep the Court vacant.
20. In the instant case too, the Court was kept vacant for a certain period
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of time.
21. LCR reveals that the present petitioner was arrested and he has been
behind bars for more than four years. Due to the abscondence of the two co-
accused, there was a delay in submission of the offence report by the
respondent. The offence report was submitted on 08.03.2021. However, after
a prolonged delay, charge was framed on 11.01.2022.
22. It cannot be ignored that there was a delay in framing of charge. The
case was then fixed for evidence and since 11.01.2022, six witnesses have
been examined till 22.06.2023, but five witnesses are yet to be examined.
23. It is apparent that the trial has not been protracted by the petitioner. A
balance has to be struck between personal liberty of the petitioner and the
embargo by the rigours of Section 37 of the NDPS Act.
24. I have also considered the prayer of parity as the co-accused of the
petitioner, Sri Lambamayum Brojen Singh has been enlarged on bail by a
coordinate Bench of this Court, in connection with Bail Application No.
3779/2023, vide order dated 10.10.2023. Indeed, deprivation of the personal
liberty without ensuring speedy trial would also not be in consonance with
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the right guaranteed under Article 21 of the Constitution of India.
25. I have considered the submission that the petitioner has pledged to
abide by any stringent conditions, if imposed upon him.
26. Considering the peculiar and unique facts and circumstances of this
case at hand, I deem it proper to enlarge the petitioner on bail.
27. In view of my foregoing discussions, petition is allowed. The petitioner
is enlarged on bail of Rs. 1,00,000/- with two solvent sureties of the like
amount, one surety being a Government Servant, under the following
conditions that:-
i) the petitioner shall refrain from such activities with which he
is alleged,
ii) the petitioner shall cooperate with the trial and shall not
jump the bail,
iii) the petitioner shall not tamper with the evidence,
iv) the petitioner shall appear before the learned trial Court,
regularly, and,
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v) the petitioner shall not leave the jurisdiction of the learned
trial Court, without prior permission, till completion of trial.
On breach of any of the conditions, the bail order shall stand
cancelled.
28. Bail Application stands disposed of.
JUDGE
Comparing Assistant
