Gauhati High Court
Page No.# 1/24 vs Union Of India on 20 November, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/24
GAHC010185842024
2024:GAU-AS:11342
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2732/2024
JITUL ALI
S/O YASIN ALI, VILL- JAIGURU AMINGAON, P.O.-AMINGAON, P.S.-
CHANGSARI, DIST- KAMRUP (ASSAM), PIN-781031
VERSUS
UNION OF INDIA
REPRESENTED BY N.C.B.
Advocate for the Petitioner : MR. K N CHOUDHURY, MR H DAS,MS. T SOM
Advocate for the Respondent : SC, NCB,
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. K.N. Choudhury, Sr. Advocate.
: Ms. T. Som, Mr. H. Das, Mr. B. Das,
Advocates.
For respondent : Mr. S. C. Keyal, Standing Counsel, NCB
Date of hearing : 07.11.2024.
Date of judgment : 20.11.2024.
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JUDGMENT AND ORDER
(CAV)
Heard Mr. K.N. Choudhury, senior advocate, assisted by Ms. T. Som, learned
counsel for the petitioner. Also heard Mr. S.C. Keyal, learned standing counsel
for the Narcotics Control Bureau (NCB for short).
2) The petitioner, who was arrested on 19.12.2022 in connection
with NDPS Case No. 23/2023 (arising out of NCB Crime No. 24/2022) under
section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985
(NDPS Act for short), has prayed for bail under section 439 of the Cr.P.C.
3) This application was filed on 27.09.2024, and by this time
Criminal Procedure Code has been repealed. Nonetheless, this application is
treated as one under section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS for short).
4) On 16.12.2022, pursuant to receipt of secret information, the
personnel of Narcotics Control Bureau (NCB for short) have seized 153.2 kgs. of
ganja (cannabis), 179 gms. of Methamphetamine tablets, 1.020 kgs. of brown
sugar suspected to be heroin and 16 bottles of Anrex- CP codeine at House No.
B/71, Railway East Colony, Amingaon, Kamrup.
5) During such time, other two accused persons, namely, Jitul Ali
(i.e. petitioner) and Atiqur Rahman arrived at the place in their Innova car
bearing registration no. AS-01-FA-2699 and a pistol was recovered from their
possession from the dashboard of the said car.
6) Accordingly, FIR was lodged on 16.12.2022 and NCB Crime
No.24/2022 was registered under section 8(C) read with section 20(b)(ii)(C),
21(c), 22(c) and 29 of the NDPS Act. Accordingly, the petitioner was arrested.
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7) On conclusion of investigation, the NCB, through its Intelligence
Officer, had submitted a complaint before the Court of the learned Special
Judge- cum- District and Sessions Judge, Kamrup (R), Amingaon. On receipt of
CDR/CAF and chemical examination report, a Supplementary Complaint along
with documents was submitted by the NCB in the said case on 11.10.2023.
8) The learned senior counsel for the petitioner has submitted that
a previous bail application of the petitioner, being B.A. 4258/2023, was rejected
by this Court by order dated 26.06.2024. Accordingly, it is projected that this is
the second bail application of the petitioner before this Court.
9) The learned senior counsel for the petitioner has submitted that
although the initial complaint petition against the petitioner was submitted on
14.06.2023, but in the absence of chemical examination report, the complaint
must be treated to be incomplete and as such the petitioner has become
entitled to default bail.
10) In this regard, it is submitted that a complaint in NDPS case
without being accompanied with a chemical examination report has been held to
be incomplete complaint. Accordingly, the petitioner is entitled to default bail
under section 173(2) of the Cr.P.C. as the complaint was not filed within the
stipulated period of 180 (one hundred and eighty) days. In support of his
contention, the learned Senior Counsel for the petitioner has relied on the case
of Mohd. Arbaz & Ors. v. State of NCT of Delhi, SLP (Crl.) No (s). 8164-
8166/2021, decided by the Supreme Court of India on 13.12.2021.
11) Moreover, it has been submitted that twelve witnesses are named
in the final complaint out of which only three witnesses have been examined as
on 03.11.2024. Hence, it was submitted that there was no chance of an early
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conclusion of trial. Accordingly, it is submitted that as the petitioner has spent
692 days in custody as on 07.11.2024, he may be enlarged on bail.
12) In support of his submission, the following cases have been cited,
viz., (i) Shariful Islam @ Sharif v. State of West Bengal, 2022 SCC Online 2069 ,
(ii) In the matter of: Idul Miya, 2024 SCC Online Cal 9109 , (iii) Abdul Mannan Ali
v. State of Assam, B.A 610/2024, decided by coordinate Bench of this Court on
18.07.2024. Moreover, the learned senior counsel for the petitioner has also
submitted a written submission on behalf of the petitioner.
13) Per contra, the learned standing counsel for the respondent has
submitted that on 17.12.2022, the seizure of contraband Narcotics Drugs and
Psychotropic Substances was made along with a Fortuner car from the
possession of Monirul Islam. During such time, other two accused persons,
namely, Jitul Ali (petitioner) and Atiqur Rahman arrived at the place in their
Innova car bearing registration no. AS-01-FA-2699 and a pistol was recovered
from the possession seized from the dashboard of the said car. It was submitted
that the NCB personnel had recorded the statement of the petitioner and
Monirul Islam on 17.12.2022 and 18.12.2022 and they admitted to be trafficking
contraband drugs for monetary benefit.
14) It is further submitted that the seized pistol was an LLMA Cal. 32
and the Innova car recovered from the petitioner and Atiqur Rahman was
having fake number plate. Later on, it was revealed that the Innova car was
registered as NL-01-CA-0194 and its theft was registered on 16.12.2022 with
the Dilai P.S. It is also submitted that investigation revealed that the petitioner
had made 46 (forty six) mobile phone calls to Monirul Islam, in whose house
contraband drugs were seized and moreover, the petitioner had made 26
(twenty six) mobile phone calls to Atiqur Rahman.
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15) To counter the case cited by the learned senior counsel for the
petitioner, it was submitted that in the case of Mohd. Arbaz (supra), the
Supreme Court of India had merely recorded the submission of the learned
counsel for the petitioner that the Investigating Agency has failed to file police
report u/s 173(2) of the Cr.P.C. within the stipulated period of 180 (one hundred
and eighty) days, which cannot be read as the decision of the Court.
16) It has also been submitted that after the final complaint was filed
on 14.06.2023, charges were framed on 06.11.2023 and the first date of
evidence was fixed on 04.12.2023 and on that date the examination- in-chief of
PW-1 was recorded but he could not be cross-examined as the counsel for the
accused took time and the cross-examination of PW-1 was completed on
11.01.2024. Thereafter on 08.02.2024, the recording of evidence of PW-2 (from
the FSL) was deferred on the prayer made by the defence counsel and the
cross-examination of PW-2 was completed on 01.04.2024. Thereafter, the
examination- in-chief of PW-3 was recorded on 23.10.2024. Accordingly, it is
submitted that the accused persons have also contributed to the delay in the
progress on the trial.
17) Opposing the prayer for bail, the learned standing counsel for the
NCB has relied on the following cases, viz., (i) State of Himachal Pradesh v.
Trilok Chand & Anr., (2018) 2 SCC 342 , (ii) Kalyan Chandra Sarkar v. Rajesh
Ranjan @ Pappu Yadav and Anr., (2005) 0 Supreme(SC) 104 , (iii) Adrish Khan v.
Union of India, B.A 962/2024, decided by this Co-ordinate Bench of this Court
on 14.05.2024, (iv) Amad Uddin Tapadar v. The State of Assam , B.A 1242/2024
decided on 28.04.2024, (v) Vanlalruati v. Union of India, Crl. Appeal
No.21/2022, decided on 28.06.2024. The learned standing counsel for the SCB
has also submitted his written submissions on behalf of the respondent.
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18) Considered the material available on record. It may be stated that
the scanned copy of the case records of B.A 4258/2023 were called for, where
the scanned copy of the records of Trial Court were called and while considering
this bail application, the said record has also been perused. Also considered the
oral and written submissions made by the learned senior counsel for the
petitioner as well as the learned standing counsel for the respondent. Also
carefully perused the cases cited by both sides at the Bar.
19) To sum up, the following points have been raised by the learned
senior counsel for the petitioner:-
a. Delay in conclusion of trial and long incarceration in judicial custody
would entitle the petitioner to bail.
b. The rigours of section 37 of the NDPS Act is not required to be met
before granting bail.
c. The non-submission of report of the FSL/ Chemical Examiner has
entitled the petitioner to default bail.
20) The order sheet of the learned Trial Court reveals that the accused
persons have also contributed to the delay in the progress of the trial.
21) Point no.(a) raised by the learned senior counsel for the petitioner
is taken up first.
22) At the outset it is deemed appropriate to refer to the provisions of
Section 479 of the BNSS, 2023, which is quoted below:
479. Maximum period for which undertrial prisoner can be detained.- (1)
Where a person has, during the period of investigation, inquiry or trial under this
Sanhita of an offence under any law (not being an offence for which the
punishment of death or life imprisonment has been specified as one of the
punishments under that law) undergone detention for a period extending up to
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one-half of the maximum period of imprisonment specified for that offence under
that law, he shall be released by the Court on bail:
Provided that where such person is a first-time offender (who has never been
convicted of any offence in the past) he shall be released on bond by the Court, if
he has undergone detention for the period extending up to one-third of the
maximum period of imprisonment specified for such offence under that law:
Provided further that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of such
person for a period longer than one-half of the said period or release him on bail
bond instead of his bond:
Provided also that no such person shall in any case be detained during the
period of investigation, inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that law.
Explanation.- In computing the period of detention under this section for
granting bail, the period of detention passed due to delay in proceeding caused by
the accused shall be excluded.
(2) Notwithstanding anything in sub-section (1), and subject to the third proviso
thereof, where an investigation, inquiry or trial in more than one offence or in
multiple cases are pending against a person, he shall not be released on bail by the
Court.
(3) The Superintendent of jail, where the accused person is detained, on
completion of one-half or one-third of the period mentioned in sub-section (1), as
the case may be, shall forthwith make an application in writing to the Court to
proceed under sub-section (1) for the release of such person on bail.
23) In this case, the learned Trial Court had framed and explained
charges to the accused under sections 8(c), 20(b)(ii)(C), 21(c), 22(c) and 29 of
the NDPS Act, by order dated 06.11.2023. The punishment prescribed under the
said sections is not less than 10 (ten) years but which may extend to 20
(twenty) years and shall also be liable to fine which shall not be less than
Rs.1.00 Lakh but which may extend to Rs.2.00 Lakh.
24) In the said context, we may refer to the relevant observation of
the Supreme Court of India in the case of Satender Kumar Antil v. Central
Bureau of investigation, AIR 2022 SC 3386, which is quoted below:
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"Where undertrial accused is charged with an offence(s) under the Act
punishable with minimum imprisonment of ten years and a minimum
fine of Rupees one lakh, such an under-trial shall be released on bail if
he has been in jail for not less than five years provided he furnishes
bail in the sum of Rupees one lakh with two sureties for like amount ."
25) With all due respect to the decision in the case Shariful Islam @
Sharif (supra), cited by the learned senior counsel for the petitioner, as pointed
out by the learned standing counsel for the respondent, it is seen that the law
laid down by the Supreme Court of India in the case of Satender Kumar Antil
(supra) was not diluted and/or discussed. Hence, as principles of law was not
laid down in the case of Shariful Islam @ Sharif (supra) and Mohd. Arbaz and
Ors. (supra), the Court is of the considered view that those are cases where bail
was granted on the basis of the facts of those cases.
26) The learned senior counsel for the petitioner has submitted that
as right to speedy trial is one of facets of Article 21 of the Constitution of India,
and delay in completion of trial would entitle the petitioner for bail. In the said
context, it has been already been mentioned herein before that charges were
framed and explained by the learned trial court by order dated 06.11.2023, and
therefore, the accused persons had contributed to the delay in the progress of
the trial. Under such circumstances, it would be appropriate to refer to the case
of Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra, (2013) 0
Supreme (SC) 252. Paragraphs 18 to 21, thereof, are quoted below:
18. At this stage, we think it apposite to advert to another aspect which is
sometimes highlighted. It is quite common that a contention is canvassed in certain
cases that unless there is a speedy trial, the concept of fair trial is totally crucified.
Recently, in Mohd. Hussain @ Julfikar Ali v. State (Government of NCT of Delhi),
(2012) 9 SCC 408, a three-Judge Bench, after referring to the pronouncements in
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578: (2002) 0
Supreme(SC) 499, Zahira Habibulla H. Shekh and another v. State of Gujarat and
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others, (2004) 4 SCC 158, Satyajit Banerjee & Ors. v. State of West Bengal & Ors.,
(2005) 1 SCC 115, pointed out the subtle distinction between the two in the
following manner:-
"40 "Speedy trial" and "fair trial" to a person accused of a crime are integral
part of Article 21. There is, however, qualitative difference between the right
to speedy trial and the accused's right of fair trial. Unlike the accused's right of
fair trial, deprivation of the right to speedy trial does not per se prejudice the
accused in defending himself. The right to speedy trial is in its very nature
relative. It depends upon diverse circumstances. Each case of delay in
conclusion of a criminal trial has to be seen in the facts and circumstances of
such case. Mere lapse of several years since the commencement of
prosecution by itself may not justify the discontinuance of prosecution or
dismissal of indictment. The factors concerning the accused's right to speedy
trial have to be weighed vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures rights to an
accused but it does not preclude the rights of public justice. The nature and
gravity of crime, persons involved, social impact and societal needs must be
weighed along with the right of the accused to speedy trial and if the balance
tilts in favour of the former the long delay in conclusion of criminal trial should
not operate against the continuation of prosecution and if the right of the
accused in the facts and circumstances of the case and exigencies of situation
tilts the balance in his favour, the prosecution may be brought to an end."
[Emphasis added]
19. It is to be kept in mind that on one hand, the right of the accused is to
have a speedy trial and on the other, the quashment of the indictment or the
acquittal or refusal for sending the matter for re- trial has to be weighed, regard
being had to the impact of the crime on the society and the confidence of the
people in the judicial system. There cannot be a mechanical approach. From the
principles laid down in many an authority of this Court, it is clear as crystal that no
time limit can be stipulated for disposal of the criminal trial. The delay caused has
to be weighed on the factual score, regard being had to the nature of the offence
and the concept of social justice and the cry of the collective. In the case at hand,
the appellant has been charge-sheeted under the Prevention of Corruption Act,
1988 for disproportionate assets. The said Act has a purpose to serve. The
Parliament intended to eradicate corruption and provide deterrent punishment
when criminal culpability is proven. The intendment of the legislature has an
immense social relevance. In the present day scenario, corruption has been treated
to have the potentiality of corroding the marrows of the economy. There are cases
where the amount is small and in certain cases, it is extremely high. The gravity of
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the offence in such a case, in our considered opinion, is not to be adjudged on the
bedrock of the quantum of bribe. An attitude to abuse the official position to
extend favour in lieu of benefit is a crime against the collective and an anathema to
the basic tenet of democracy, for it erodes the faith of the people in the system. It
creates an incurable concavity in the Rule of Law. Be it noted, system of good
governance is founded on collective faith in the institutions. If corrosions are
allowed to continue by giving allowance to quash the proceedings in corruption
cases solely because of delay without scrutinizing other relevant factors, a time
may come when the unscrupulous people would foster and garner the tendency to
pave the path of anarchism.
20. It can be stated without any fear of contradiction that corruption is not to
be judged by degree, for corruption mothers disorder, destroys societal will to
progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory
of the institutions, paralyses the economic health of a country, corrodes the sense
of civility and mars the marrows of governance. It is worth noting that immoral
acquisition of wealth destroys the energy of the people believing in honesty, and
history records with agony how they have suffered. The only redeeming fact is that
collective sensibility respects such suffering as it is in consonance with the
constitutional morality. Therefore, the relief for quashing of a trial under the 1988
Act has to be considered in the above backdrop.
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
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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. 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.
27) The Court is inclined to take note of the observations of the
Supreme Court of India in the case of Hira Singh & Anr. v. Union of India & Anr.,
(2020) 0 Supreme(SC) 320, decided by a 3-Judge Bench, which is extracted
below:-
8.5. The problem of drug addicts is international and the mafia is working
throughout the world. It is a crime against the society and it has to be dealt with
iron hands. Use of drugs by the young people in India has increased. The drugs are
being used for weakening of the nation. During the British regime control was kept
on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium
Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time
and the development in the field of illicit drug traffic and during abuse at national
and international level, many deficiencies in the existing laws have come to notice.
Therefore, in order to remove such deficiencies and difficulties, there was urgent
need for the enactment of a comprehensive legislation on Narcotics Drugs and
Psychotropic Substances, which led to enactment of NDPS Act. As observed herein
above, the Act is a special law and has a laudable purpose to serve and is intended
to combat the menace otherwise bent upon destroying the public health and
national health. The guilty must be in and the innocent ones must be out. The
punishment part in drug trafficking is an important one but its preventive part is
more important. Therefore, prevention of illicit traffic in Narcotics Drugs and
Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent
illicit traffic rather than punish after the offence was committed. Therefore, the
Courts will have to safeguard the life and liberty of the innocent persons.
Therefore, the provisions of NDPS Act are required to be interpreted keeping in
mind the object and purpose of NDPS Act; impact on the society as a whole and
the Act is required to be interpreted literally and not liberally which may ultimately
frustrate the object, purpose and preamble of the Act. Therefore, the interpretation
of the relevant provisions of the statute canvassed on behalf of the accused and
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the intervener that quantity of neutral substance(s) is not to be taken into
consideration and it is only actual content of the weight of the offending drug,
which is relevant for the purpose of determining whether it would constitute "small
quantity or commercial quantity", cannot be accepted.
28) Thus, the Court is of the considered opinion that offence of
dealing with, transporting of Drugs and Narcotics Substances and drug peddling,
which has the tendency to adversely affect the society and destroy the future of
the youth of the Country, must also be treated to be a separate class of offence.
29) In the case of P. Ramachandra Rao (supra), a 7- Judge Bench of
the Supreme Court of India had held as follows:-
29. For all the foregoing reasons, we are of the opinion that in Common
Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and
(II), the Court could not have prescribed periods of limitation beyond which the
trial of a criminal case or a criminal proceeding cannot continue and must
mandatorily be closed followed by an order acquitting or discharging the accused.
In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and
expounding the right to speedy trial laid down as guidelines in A.R. Antulay's
case, adequately take care of right to speedy trial. We uphold and re-affirm
the said propositions.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but
only illustrative. They are not intended to operate as hard and fast rules or to
be applied like a strait-jacket formula. Their applicability would depend on the
fact-situation of each case. It is difficult to foresee all situations and no
generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or
prescribe an outer limit for conclusion of all criminal proceedings. The time-
limits or bars of limitation prescribed in the several directions made in
Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not
have been so prescribed or drawn and are not good law. The criminal courts
are not obliged to terminate trial or criminal proceedings merely on account of
lapse of time, as prescribed by the directions made in Common Cause Case
(I), Raj Deo Sharma case (I) and (II). At the most the periods of time
prescribed in those decisions can be taken by the courts seized of the trial or
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proceedings to act as reminders when they may be persuaded to apply their
judicial mind to the facts and circumstances of the case before them and
determine by taking into consideration the several relevant factors as pointed
out in A.R. Antulay's case and decide whether the trial or proceedings have
become so inordinately delayed as to be called oppressive and unwarranted.
Such time limits cannot and will not by themselves be treated by any Court as
a bar to further continuance of the trial or proceedings and as mandatorily
obliging the court to terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those
under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate
the right to speedy trial. A watchful and diligent trial judge can prove to be
better protector of such right than any guidelines. In appropriate cases
jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and
227 of Constitution can be invoked seeking appropriate relief or suitable
directions.
(6) This is an appropriate occasion to remind the Union of India and the
State Governments of their constitutional obligation to strengthen the
judiciary-quantitatively and qualitatively-by providing requisite funds,
manpower and infrastructure. We hope and trust that the Governments shall
act.
30) We may also refer to the decision of the Supreme Court of India
in the case of Tarun Kumar v. Assistant Director, Directorate of Enforcement,
(2023) 0 Supreme(SC) 1163, wherein the Supreme Court of India, in the
context of Prevention of Money Laundering Act, has observed as follows:-
20. It is also difficult to countenance the submission of learned Counsel Mr.
Luthra that the investigation qua the appellant is complete and the trial of the
cases likely to take long time. According to him the appellant ought not to be
incarcerated indefinitely merely because the investigation is kept open with regard
to the other accused. In this regard, it may be noted that the appellant has not
been able to overcome the threshold stipulations contemplated in Section 45
namely he has failed to prima facie prove that he is not guilty of the alleged
offence and is not likely to commit any offence while on bail. It cannot be gainsaid
that the burden of proof lies on the accused for the purpose of the condition set
out in the Section 45 that he is not guilty of such offence. Of course, such
discharge of burden could be on the probabilities, nonetheless in the instant case
there being sufficient material on record adduced by the respondent showing the
thick involvement of the appellant in the alleged offence of money laundering
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under Section 3 of the said Act, the Court is not inclined to grant bail to the
appellant.
21. The apprehension of the learned counsel for the appellant that the trial is
likely to take long time and the appellant would be incarcerated for indefinite
period, is also not well founded in view of the observations made by this Court in
case of Vijay Madanlal Choudhary & Ors. v. Union of India & Ors., 2022 SCC OnLine
929. On the application of Section 436A of the Code of Criminal Procedure, 1973, it
has been categorically held therein that:-
"419. Section 436A of the 1973 Code, is a wholesome beneficial provision,
which is for effectuating the right of speedy trial guaranteed by Article 21 of
the Constitution and which merely specifies the outer limits within which the
trial is expected to be concluded, failing which, the accused ought not to be
detained further. Indeed, Section 436A of the 1973 Code also contemplates
that the relief under this provision cannot be granted mechanically. It is still
within the discretion of the Court, unlike the default bail under Section 167 of
the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is
required to consider the relief on case-to-case basis. As the proviso therein
itself recognises that, in a given case, the detention can be continued by the
Court even longer than one-half of the period, for which, reasons are to be
recorded by it in writing and also by imposing such terms and conditions so as
to ensure that after release, the accused makes himself/herself available for
expeditious completion of the trial."
31) From the materials available on record, it is revealed that in this
case a huge seizure of commercial quantity of contraband Narcotics Drugs and
Psychotropic Substances was made. Apart from cannabis and
methamphetamine tablets, 1.020 kg of suspected heroin was seized. The said
substance has tested positive for heroin. Therefore, while considering the prayer
for bail, the court is unable to record that the petitioner is not guilty of
committing the offence which is a requirement of the Provisions of Section 37 of
the NDPS Act.
32) In the said context, it would be relevant to refer to the case of
Mohd. Muslim @ Hussain v. State (NCT of Delhi), S.L.P.(Crl.) No. 915/2023,
decided by 2- Judge Bench and reported in (2023) 0 Supreme(SC) 289. In the
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said case, the Supreme Court of India had referred to the case of Union of India
v. Rattan Malik, (2009) 2 SCC 624: (2009) 0 Supreme(SC) 95. Paragraphs 14, 15
and 16 as extracted from the citation of (2009) 0 Supreme(SC) 95 is quoted
below:-
14. We may, however, hasten to add that while considering an application for
bail with reference to Section 37 of the NDPS Act, the Court is not called upon to
record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to
weigh the evidence meticulously to arrive at a positive finding as to whether or not
the accused has committed offence under the NDPS Act. What is to be seen is
whether there is reasonable ground for believing that the accused is not guilty of
the offence(s) he is charged with and further that he is not likely to commit an
offence under the said Act while on bail. The satisfaction of the Court about the
existence of the said twin conditions is for a limited purpose and is confined to the
question of releasing the accused on bail.
15. Bearing in mind the above broad principles, we may now consider the
merits of the present appeal. It is evident from the afore-extracted paragraph that
the circumstances which have weighed with the learned Judge to conclude that it
was a fit case for grant of bail are: (i) that nothing has been found from the
possession of the respondent; (ii) he is in jail for the last three years and (iii) that
there is no chance of his appeal being heard within a period of seven years. In our
opinion, the stated circumstances may be relevant for grant of bail in matters
arising out of conviction under the Indian Penal Code, 1860 etc. but are not
sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of
sub-section (1) of Section 37 of the NDPS Act. Merely because, according to the
Ld. Judge, nothing was found from the possession of the respondent, it could not
be said at this stage that the respondent was not guilty of the offences for which
he had been charged and convicted. We find no substance in the argument of
learned counsel for the respondent that the observation of the learned Judge to
the effect that "nothing has been found from his possession" by itself shows
application of mind by the Ld. Judge tantamounting to "satisfaction" within the
meaning of the said provision. It seems that the provisions of the NDPS Act and
more particularly Section 37 were not brought to the notice of the learned Judge.
16. Thus, in our opinion, the impugned order having been passed ignoring
the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained.
Accordingly, the appeal is allowed and the matter is remitted back to the High
Court for fresh consideration of the application filed by the respondent for
suspension of sentence and for granting of bail, keeping in view the parameters of
Page No.# 16/24
Section 37 of the NDPS Act, enumerated above. We further direct that the bail
application shall be taken up for consideration only after the respondent surrenders
to custody. The respondent is directed to surrender to custody within two weeks of
the date of this order, failing which the High Court will take appropriate steps for
his arrest.
33) In this case, the learned standing counsel for the respondent has
been able to prima facie satisfy the Court that there are materials in the final
complaint to suggest that the petitioner along with two other co-accused were
caught with conscious possession of the commercial quantity of contraband and
the petitioner is suspected to be one of the kingpins involved in the
transportation of commercial quantity of contraband drugs in the State.
34) In the said context, reference can also be made to the decision of
the Supreme Court of India in the case of Gurwinder Singh v. State of Punjab &
Anr., (2024) 0 Supreme(SC) 104. In the said case, the appellant, therein, was
arrested was under Unlawful Activities (Prevention) Act, 1967. In the said case,
the prayer for bail was rejected as it was a case of serious offence and
moreover the legal requirement was to consider the provisions of section 43(D)
(5) of the said Act and accordingly, it was held that delay in trial pertaining to
grave offence cannot be used for granting bail.
35) Accordingly, in light of the discussions on the point no. (a), the
Court is inclined to hold that despite being in custody for about 692 days, since
the order of remand, and despite the fact that time estimated time by when the
trial may be over cannot be said at this premature stage, the petitioner is not
yet become entitled to be enlarged on bail.
36) The point no. (b) is taken up now.
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37) In the present case, the contraband substances recovered are of
commercial quantity and therefore, the petitioner will have to satisfy the twin
requirement of section 37 of the NDPS Act. Unless the twin requirements are
fulfilled, the petitioner will not be entitled to be allowed to go on bail. In the
said context, we have refer to the decision of the Supreme Court of India in the
case of Union of India v. Ajay Kumar Singh @ Pappu, (2023) 0 Supreme(SC)
285. Paragraphs 14 to 17 thereof are quoted below:-
14. This apart, it is noticed that the High Court, in passing the impugned
order of bail, had lost sight of Section 37 of the NDPS Act, which, inter-alia,
provides that no person accused of an offence involving commercial quantity shall
be released on bail unless the twin conditions laid down therein are satisfied,
namely (i) the public prosecutor has been given an opportunity to oppose the bail
application and (ii) the court is satisfied that there are reasonable grounds for
believing that he is not guilty of such an offence and that he is not likely to commit
any such offence while on bail.
15. For the sake of convenience Section 37(1) is reproduced herein-below:
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 application for such release.
(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."
16. In view of the above provisions, it is implicit that no person accused of an
offence involving trade in commercial quantity of narcotics is liable to be released
on bail unless the court is satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence and that he is not likely to commit any
offence while on bail.
Page No.# 18/24
17. The quantity of "ganja" recovered is admittedly of commercial quantity.
The High Court has not recorded any finding that the respondent-accused is not
prima-facie guilty of the offence alleged and that he is not likely to commit the
same offence when enlarged on bail rather his antecedents are indicative that he is
a regular offender. In the absence of recording of such satisfaction by the court, we
are of the opinion that the High Court manifestly erred in enlarging the respondent-
accused on bail.
38) In the case of Narcotics Control Bureau v. Mohit Aggarwal, AIR
2022 SC 3444, a 3-Judge Bench of the Supreme Court of India had observed as
follows:-
11. It is evident from a plain reading of the non-obstante clause inserted in
sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that
there are certain restrictions placed on the power of the Court when granting bail
to a person accused of having committed an offence under the NDPS Act. Not only
are the limitations imposed under Section 439 of the Code of Criminal Procedure,
1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1)
of Section 37 are also to be factored in. The conditions imposed in sub- section (1)
of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to
oppose the application moved by an accused person for release and (ii) if such an
application is opposed, then the Court must be satisfied that there are reasonable
grounds for believing that the person accused is not guilty of such an offence.
Additionally, the Court must be satisfied that the accused person is unlikely to
commit any offence while on bail.
12. The expression "reasonable grounds" has come up for discussion in several
rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira,
(2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it
has been held thus:-
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits. Apart from the grant of opportunity to the
Public Prosecutor, the other twin conditions which really have relevance so far
as the present accused-respondent is concerned, are: the satisfaction of the
court that there are reasonable grounds for believing that the accused is not
guilty of the alleged offence and that he is not likely to commit any offence
while on bail. The conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being not guilty has to be
based on reasonable grounds. The expression "reasonable grounds" means
something more than prima facie grounds. It contemplates substantial
Page No.# 19/24
probable causes for believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the provision requires
existence of such facts and circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the alleged offence.
[emphasis added]
13. The expression 'reasonable ground' came up for discussion in State of
Kerala & Ors. v. Rajesh and others, (2020) 12 SCC 122 and this Court has observed
as below:
13. The expression "reasonable grounds" means something more than prima
facie grounds. It contemplates substantial probable causes for believing that
the accused is not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on hand, the High
Court seems to have completely overlooked the underlying object of Section
37 that in addition to the limitations provided under the CrPC, or any other
law for the time being in force, regulating the grant of bail, its liberal approach
in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis
added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of
Sub Section (1) of Section 37 would mean credible, plausible and grounds for
the Court to believe that the accused person is not guilty of the alleged
offence. For arriving at any such conclusion, such facts and circumstances
must exist in a case that can persuade the Court to believe that the accused
person would not have committed such an offence. Dove-tailed with the
aforesaid satisfaction is an additional consideration that the accused person is
unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in
the context of the Section 37 of the Act, the Court is not required to record a
finding that the accused person is not guilty. The Court is also not expected to
weigh the evidence for arriving at a finding as to whether the accused has
committed an offence under the NDPS Act or not. The entire exercise that the
Court is expected to undertake at this stage is for the limited purpose of
releasing him on bail. Thus, the focus is on the availability of reasonable
grounds for believing that the accused is not guilty of the offences that he has
been charged with and he is unlikely to commit an offence under the Act
while on bail.
* * *
17. Even dehors the confessional statement of the respondent and the other
co-accused recorded under Section 67 of the NDPS Act, which were
Page No.# 20/24
subsequently retracted by them, the other circumstantial evidence brought on
record by the appellant-NCB ought to have dissuaded the High Court from
exercising its discretion in favour of the respondent and concluding that there
were reasonable grounds to justify that he was not guilty of such an offence
under the NDPS Act. We are not persuaded by the submission made by
learned counsel for the respondent and the observation made in the
impugned order that since nothing was found from the possession of the
respondent, he is not guilty of the offence for which he has been charged.
Such an assumption would be premature at this stage.
39) Thus, in light of the discussions above, in respect of the point no.
(b), it is held that before the petitioner can be enlarged on bail, he will have to
satisfy the twin requirement of section 37 of the NDPS Act, which he has not
been able to.
40) The point no. (c) is taken up now.
41) In the case of Central Bureau of Investigation v. Kapil Wadhawan
& Anr. 2024 INSC 57: (2024) 0 Supreme (SC) 72, the Supreme Court of India
has held that the right of default bail under section 167(2) Cr.P.C. is not only a
statutory right but is a right that flows from Article 21 of the Constitution of
India, which has been held to be an indefeasible right, nonetheless it has
further been held that it is enforceable only prior to filing of charge-sheet and
does not survive or remain enforceable on charge-sheet being filed, if already
not availed of. It is further held that once the charge-sheet is filed, question of
grant of bail has to be considered and decided only with reference to the merits
of the case under provisions relating to grant of bail to the accused after filing
of charge-sheet.
42) We may also refer to the observations made by a 4- Judge Bench
of the Supreme Court of India in the case of Tara Singh v. State, AIR 1951 SC
441. Speaking for the Bench, Justice Vivian Bose had observed in paragraph 14
Page No.# 21/24
as follows:-
14. When the police drew up their challan of 2-10-1949 and submitted it to
the Court on the 3rd, they had in fact completed their investigation except for the
report of the Imperial Serologist and the drawing of a sketch map of the
occurrence. It is always permissible for the Magistrate to take additional evidence
not set out in the challan. Therefore, the mere fact that a second challan was put
in on 5th October would not necessarily vitiate the first. All that S.173(1)(a)
requires is that as soon as the police investigation under Chap. 14 of the Code is
complete, there should be forwarded to the Magistrate a report in the prescribed
form: "Setting forth the names of the parties, the nature of the information and the
names of the persons who appear to be acquainted with the circumstances of the
case." All that appears to have been done in the report of 2nd October which the
police called their incomplete challan.
43) In the case of Central Bureau of Investigation v. R.S. Pai, AIR
2002 SC 1644: (2002) 5 SCC 82: (2002) 0 Supreme(SC) 428 , the following
observation has been made by a 3-Judge Bench of the Supreme Court of India
[extracted from (2002) 0 Supreme(SC) 428 ]:-
7. From the aforesaid sub-sections, it is apparent that normally the
investigating officer is required to produce all the relevant documents at the time of
submitting the charge-sheet. At the same time, as there is no specific prohibition, it
cannot be held that the additional documents cannot be produced subsequently. If
some mistake is committed in not producing the relevant documents at the time of
submitting the report of chargesheet, it is always open to the investigation officer
to produce the same with the permission of the Court. In our view, considering the
preliminary stage of prosecution and the context in which police officer is required
to forward to the Magistrate, all the documents or the relevant extracts thereof on
which prosecution proposes to rely, the word 'shall' used in sub-s. (5) cannot be
interpreted as mandatory but as directory. Normally, the documents gathered
during the investigation upon which the prosecution wants to rely are required to
be forwarded to the Magistrate but if there is some omission, it would not mean
that the remaining documents cannot be produced subsequently. Analogous
provision under S.173(4) of the Code of Criminal Procedure, 1898 was considered
by this Court in Narayan Rao v. The State of Andhra Pradesh (1958 SCR 283 at
293) and it was held that the word 'shall' occurring in sub-s. 4 of S.173 and sub-s.
3 of S.207A is not mandatory but only directory. Further, the scheme of sub-s. (8)
Page No.# 22/24
of S.173 also makes it abundantly clear that even after the charge-sheet is
submitted, further investigation, if called for, is not precluded. If further
investigation is not precluded then there is no question of not permitting the
prosecution to produce additional documents which were gathered prior to or
subsequent to investigation. In such cases, there cannot be any prejudice to the
accused. Hence, the impugned order passed by the Special Court cannot be
sustained.
44) Thus, in the present case, merely because the report of the FSL/
Chemical Analyst was not available, it cannot be held that the investigation was
not complete.
45) It may be stated that it was submitted at the Bar that the
question as to whether a person accused of committing offences under the
NDPS Act is entitled to default bail on the failure of the prosecution to furnish
the report of the Forensic Science Laboratory along with the charge-sheet within
the prescribed time has been referred to a larger Bench of the Supreme Court of
India and if that statement made at the Bar is correct, the decision of the
Supreme Court of India in the case of Kapil Wadhawan & Anr. (supra) would be
binding upon this Court. Accordingly, with due respect to the decision of the
Calcutta High Court in the case of Idul Mia (supra), cannot be accepted to have
a persuasive effect in connection with the case in hand.
46) Thus, in respect of the point no. (c), the Court is inclined to hold
that the non-submission of the report of the FSL/ Chemical Examiner along with
the initial charge-sheet would not entitle the petitioner to default bail because
except for the receipt of such report, it cannot be held that the investigation
was not over.
47) In the order dated 20.06.2024, passed in B.A. 4258/2023, which
is the order in the previous bail application filed by the petitioner, the extent of
Page No.# 23/24
contraband Narcotics Drugs and Psychotropic Substances seized in the year
2024 upto 24th June, 2024 has been mentioned. Moreover, it has also been
recorded in the said order about the submission made by the learned standing
counsel for the respondent NCB that in view of the enormous seizure of such
contraband, there is also an inadvertent delay in releasing the FSL (i.e. Chemical
Examiner's Report). Therefore, the Court is compelled to observe that it is a
high-time that the concerned authorities in the State as well as the various
Central Government agencies should deliberate upon the issue of timely
providing of FSL/ Chemical Examiner's Report or if there is any need to increase
such laboratories, specifically to locate such laboratories nearest to those
porous border districts from where such cases are detected and/or to examine if
there is any fault in the system, as well as to explore if such examination
reports can be digitally created and/or otherwise uploaded/e-mailed by the
authorities in such testing laboratories to the concerned police station. These
actions shall perhaps go a long way in the interest of an early trial.
48) In light of the discussions above, this bail application is rejected.
49) Before parting with the records, we put on record that although
the learned standing counsel for the respondent that the petitioner was
apprehended with a pistol and a stolen Innova Car with fake licence plate and it
was submitted that if granted bail, the petitioner can easily vanish/ abscond and
become untraceable. However, as the Court is presently dealing with the issue
of bail in connection with offences committed under NDPS Act, the Court is not
inclined to deal with the said submission at this juncture.
50) The Registry shall segregate the record of B.A. 4258/2023 from
this bail application.
Page No.# 24/24
51) In view of the observations made in paragraph 47 above, the
learned Standing Counsel for the NCB shall forward a downloaded copy of this
order to the NCB and to the Principal Secretary to the Govt. of Assam, Home
Department.
JUDGE.
Comparing Assistant
