Gauhati High Court

Manish Kumar vs The State Of Assam on 24 July, 2024

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GAHC010096862024




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

                               Case No. : Bail Appln./1407/2024

            MANISH KUMAR
            S/O UPENDER YADAV, R/O BAHADURPUR, ATHMALGOLA, RUPAS, P.S.-
            ATHMALGOLA, PATNA-803211, DIST-PATNA, BIHAR



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. A BHATTACHARYA

Advocate for the Respondent : PP, ASSAM
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                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

24.07.2024

Heard Mr. A. Bhattacharya, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

2. The Health Status Report of the accused/petitioner called for, has not yet been furnished today.

3. This is an application under Section 439 of the Code of Criminal Procedure praying for grant of bail to the accused/ petitioner, namely, Manish Kumar, who has been arrested on 12.09.2022 in connection with Special Case No. 138/2022 arising out of Bazaricherra P. S. Case No. 170/2022, registered under Sections 20(b) (ii) (c)/25/29 of the NDPS Act.

4. The scanned copy of the case record has already been received, and I have perused the same.

5. The learned counsel for the petitioner, Mr. Bhattacharya, submits that the petitioner is innocent and has no connection with the alleged offence. It is contended that the petitioner was arrested on 12.09.2022 and has been in custody for more than 1 year and 9 months. However, to date, the prosecution has not examined any witnesses in connection with this case. The petitioner contends that he was merely a helper in the truck and was unaware about the contraband being carried in the vehicle. The charge-sheet against the petitioner was filed on 30.11.2022 under Sections 20(b)(ii)(c)/25/29 of the NDPS Act. Subsequently, on 28.02.2023, a supplementary charge-sheet was filed against a Page No.# 3/9

co-accused, Ranjit Singh, the owner of the vehicle, who was shown as an absconder. The Trial Court had granted zimma of the vehicle to him, but, he was charge-sheeted and shown as absconder. Accordingly, the learned Trial Court framed charges against the petitioner on 20.05.2023, to which the petitioner pleaded not guilty and claimed to be tried. Two prosecution witnesses were summoned but could not be examined. By order dated 15.07.2023, these two witnesses were allowed to leave with directions to appear upon receipt of fresh summons. Thus, no prosecution witnesses have been examined to date. Despite the petitioner's long incarceration of more than 1 year and 9 months, the trial has not yet commenced.

6. In support of his submission, the learned counsel for the petitioner further relied on a decision of the Supreme Court in the case of Rabi Prakash vs. the State of Odisha reported in 2023 Live Law (SC) 533, wherein, it has been held that "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. He also relied on a decision of a Co-ordinate Bench of this Court passed in B.A. No. 190/2023, dated 26.06.2023, wherein, this Court considering the view of the Apex Court in the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi) reported in 2023 SCC Online SC 352; Nitesh Adhikari Vs. State of West Bengal (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022) and Chitta Biswas Alias Subha Vs. The State Of West Bengal (Order dated 07.02.2020 passed in SLP Criminal No. 8823/2019), bail was granted considering the long incarceration of the petitioner.

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8. The learned counsel for the petitioner, Mr. Bhattacharya, has submitted that the petitioner is suffering from a serious illness which requires immediate ear surgery. Therefore, he requests that the petitioner may be granted bail, considering the length of his prolonged incarceration. He also submits that he is a permanent resident of the addressed locality and there is no chance of absconding, rather, he will appear before the Trial Court on each and every date fixed.

9. In this context, the learned Additional Public Prosecutor, Mr. Borthakur, submitted that this case involves a commercial quantity of contraband and that it cannot be said that the petitioner, as a helper, is not involved in the alleged offence. He submits that there is sufficient incriminating material against the accused/petitioner, indicating his direct involvement in the offence. He also noted that, based on the prima facie evidence, a charge-sheet was filed against the petitioner along with another co-accused. Further it is submitted that to consider a bail application under the NDPS Act in case of commercial quantity, rigor of Section 37 will apply and hence, considering the nature of allegation, he raised objection against the bail prayer of the present accused/petitioner.

10. Section 37 of the NDPS Act read as follows:

"37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) No person accused of an offence punishable for [offences under Section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless

(i) the Public Prosecutor has been given an opportunity to oppose the Page No.# 5/9

application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

11. He further submitted that the delay in the case was caused by the non- appearance of the co-accused, who is shown as absconding in the supplementary charge-sheet. He further submitted that if the accused is allowed to go on bail only considering the length of detention or period of incarceration, the probability of absconding of the accused cannot be denied and in which event, there will be delay in disposal of the case.

12. In support of his submission, he relied on a decision passed by the Apex Court in the case of State of Meghalaya vs. Lalrintluanga Sailo & Anr. reported in 2024 Legal Eagle (SC) 646, wherein, it has been held that "liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications".

13. He also emphasized in paragraph No.22 of the order passed by the Co- Ordinate Bench of this Court in Bail Application No.4258/2023 [ Jitul Ali vs. The Union of India] which read as follows:-

Para-22. In the case of Shariful Islam @ Sarif (supra) and Nitish Adhikary @ Bapan (supra), bail was granted by the Supreme Court of Page No.# 6/9

India by considering the length of detention as mentioned in the said orders. However, the law laid down in the case of Satender Kumar Antil (supra), is not found to have been diluted in any manner. Therefore, as principles of law was not laid down in the said cases, it must be presumed that bail was granted in those two cases on the basis of the facts of the said case.

14. Accordingly, Mr. Borthakur, the learned Additional Public Prosecutor, submitted that the accused/petitioner is not entitled to bail solely based on the period of incarceration and raised objections to granting bail to the accused/petitioner.

15. After hearing the submissions made by the learned counsels for both sides, I have perused the case record and the relevant documents annexed with the petition. It is a fact that the accused/petitioner has been in custody for over 1 year and 9 month. The charge-sheet has been filed and charges have been framed against the accused/petitioner. However, while the case was at the evidence stage, a supplementary charge-sheet was filed against a co-accused, Ranjit Singh, who has been marked as an absconder. But, the learned Trial Court has been unable to procure his attendance, and as a result, the case is still pending at the stage of appearance. Consequently, none of the prosecution witnesses have been examined by the Trial Court..

16. In case of Rabi Prakash (Supra), the Hon'ble Supreme Court has held as under:

"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 2 nd conditions re:

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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 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."

17. Accordingly, the Hon'ble Apex Court held that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution. Similar view has been expressed by the Hon'ble Apex Court in case of Sariful Islam @ Sarif Vs. The State of West Bengal, dated 04.08.2022, wherein also, considering the length of detention and also considering the aspect that there is no likelihood of completion of trial in near future, the bail was granted to the petitioner.

18. The same view is also expressed in another recent judgment of Division Bench of Hon'ble Apex Court in Mohd Muslim @ Hussain Vs. State (NCT of Delhi), reported in 2023 LiveLaw (SC) 260, wherein, in paragraph No. 23 of the said judgment, it has been held as under:

"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" (also see Donald Clemmer's 'The Prison Community' published in 1940). 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 Page No.# 8/9

taken up and concluded speedily."

19. In the instant case, it is seen that the matter remains at the stage of the co-accused's appearance, who is still absconding. Although charges have been framed against the accused/petitioner, the examination of witnesses has not occurred due to the absence of the co-accused, who is shown as an absconder in the supplementary charge-sheet. Consequently, the trial has yet to be commenced. Given this situation, it is unlikely that the case will be resolved in the near future. Meanwhile, the accused/petitioner has been incarcerated for over 1 year and 9 months and is suffering from a serious ear problem that requires immediate surgery.

20. So, considering all these aspects of the case and the view of the Apex Court passed in recent cases, without going into the merit of the case, I find it a fit case to allow the accused/petitioner to go on bail.

21. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with two sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Sessions Judge, Karimganj, the accused/petitioner, namely, Manish Kumar, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Sessions Judge, Karimganj, on each and every date to be fixed by the Court;

(ii) that the 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 or to any police officer; and Page No.# 9/9