Gauhati High Court
Raju Brahma vs The State Of Assam on 12 February, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010251422024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3633/2024
RAJU BRAHMA
S/OLT. THAKUR SINGH BRAHMA
R/O NO. 2 KHOMABARI
P.S. UDALGURI
DIST. UDALGURI, ASSAM
PIN- 784509
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR D K MEDHI, P BORUAH
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date: 12.02.2025
Heard Shri D. K. Medhi, learned counsel for the petitioner, namely, Raju
Brahma, who has filed this bail application under Section 483 of the BNSS, 2023
praying for bail in connection with Special NDPS Case No. 12/2023 u/s 20(b)(ii)
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(C) of NDPS Act, 1985.
2. The petitioner was arrested on 26.05.2023.
3. Pursuant to earlier order, the scanned copies of the case records have been
transmitted to this Court.
4. Shri Medhi, learned counsel for the petitioner makes the following
submissions in support of his prayer for bail:
i. The petitioner is behind the bars since the date of his arrest i.e.
26.05.2023 and therefore, further custodial detention is not
necessary. Though the trial has begun, only 4 nos. of PWs have been
examined.
ii. In view of the fact that the petitioner is in custody for a long period
of time, the rigours of Section 37 of the NDPS Act can be dispensed
with.
iii. There is no prima facie case against the petitioner as he was simply
the driver of the vehicle and did not have any involvement and
therefore, he should be released on bail.
5. In support of his submissions, Shri Medhi, learned counsel for the petitioner
places reliance upon an order dated 20.12.2023 passed by this Court in
BA/1317/2023 (Mohammad Taslim Ahamad Vs Union of India) . He has
submitted that in the aforesaid order, this Court had taken into consideration a
number of cases of the Hon'ble Supreme Court wherein bail were granted
mainly on the ground of long incarceration. He has submitted that in the case of
Rabi Prakash Vs. State of Odisha [Order dated 13.07.2023 in SLP (Crl.)
No. 4169/2023], which was relied upon in the aforesaid case of Taslim
(supra), the Hon'ble Supreme Court has observed that "prolonged incarceration
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generally militates against the most preciously fundamental right guaranteed
under Article 21 of the Constitution of India and in such a situation, the
conditional liberty must override the statutory embargo created under Section
37 (1)(b)(ii) of the NDPS Act, 1985".
6. Per contra, Ms. S. Jahan, learned Addl. PP, Assam strenuously opposed the
prayer for grant of bail of the petitioner. She submits that the charge sheet has
been submitted and the trial has begun in which 7 nos. of PWs have been cited,
out of which, 4 nos. of PWs have already been examined. She accordingly
submits that there is no inordinate delay in the trial.
7. With regard to the requirement of prima facie case on the basis of the
materials on record, the learned APP submits that the petitioner is a named
accused who was arrested on the spot of the seizure from the vehicle (Santro)
which was driven by the petitioner. It also appears from the FIR that when the
vehicle was stopped by the Naka party at Nagrijuli, the facial reaction of the
driver and the other occupants rose suspicion and on a search, 72 kgs of ganja
was recovered. The learned APP finally submits that in consideration of a bail
application, this Court is not required to go into the merits of the allegations and
the decision is to be rendered based on a prima facie determination from the
materials on record.
8. On the aspect of the case laws, the learned APP submits that apart from
the fact that the rule of precedents will not have a strict application in criminal
jurisprudence, the facts of the cases cited are distinguishable.
9. The rival contentions made on behalf of the parties have been duly
considered and the scanned copies of the case records have been carefully
examined.
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10. Before considering the submissions, this Court cannot lose sight of the fact
that the bail sought for is in connection with the NDPS Act and the contraband
involved is Ganja, the quantity of which has been ascertained as 72 kgs.
11. 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
consideration other facts and circumstances, such as the
interest of the society."
12. This Court also takes into consideration the very object of the enactment,
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namely to curb the menace of drugs and its devastating effects on the society
which has the propensity to destroy the generation as a whole. Therefore, any
consideration of a prayer for bail in a NDPS case, that too for a commercial
quantity has to be done without overlooking the aspect of interest of the society
in general.
13. As regards the first ground urged in support of the prayer for bail, namely,
long incarceration and reliance on the case of Rabi Prakash (supra) is
concerned, this Court is of the opinion that such ground has to be weighed
against the objective of the Act. In the case of Rabi Prakash (supra), the
accused was in custody for a period of more than 3 ½ years and in the trial,
only 1 out of 19 witnesses was examined. On the other hand, in the instant
case, out of 7 PWs, 4 PWs have already been examined and the period of
detention is also much less.
14. With regard to the ground of availability of a prima facie case, the
petitioner is a named accused who was arrested at the place of occurrence and
was driving the vehicle (Santro). The seized contraband has been found to be
Ganja, that too 72 kgs which is a commercial quantity. The contraband was
found concealed in the vehicle. This Court has further noted that the vehicle is
not a large vehicle like a bus where there are many passengers but a Santro
with only 3 persons including the petitioner. This Court has also noted that there
is no denial of the fact of the presence of the petitioner in the vehicle.
15. In the case of NCB Vs. Mohit Aggarwal reported in AIR 2022 SC
3444, the requirement that the accused person is unlikely to commit any
offence while on bail has also been taken into consideration. The Hon'ble
Supreme Court has interpreted Section 37 of the Act which has been inserted
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especially for the purpose of consideration of bail. It has been held that the
expression "reasonable ground" appearing in Section 37(1)(b) would mean
credible and plausible grounds for the Court to believe that the accused person
is not guilty for which supporting facts and circumstances must exists. The
satisfaction regarding the accused person unlikely to commit any offence while
on bail has also been highlighted.
16. The NDPS Act is a special Act with an inbuilt mechanism in the form of
Section 37 relating to bail. For ready reference, Section 37 is extracted
hereinbelow:
"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 he
cognizable;
(b) No person accused of an 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, and
(ii) Where the Public Prosecutor opposes the
application, the court is satisfied that there are
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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."
17. The said Act has introduced an additional restriction in the form of giving
an opportunity to the Public Prosecutor and more importantly, the Court has to
be satisfied that there are reasonable grounds for believing that the accused is
not guilty of such offence and that he is not likely to commit any offence while
on bail. Section 37 (2) makes it clear that the aforesaid limitations are in
addition to the other limitations under the Cr.P.C or any other law for the time
being in force, on grant of bail.
18. This Court also takes into account the case of Union of India Vs. Ajay
Kumar Singh @ Pappu wherein the Hon'ble Supreme Court vide an order
dated 28.03.2023 in Crl. App. No. 952/2023 interfered with an order passed by
the Allahabad High Court whereby bail was granted. It was held that Section 37
of the Act was lost sight of by the High Court. Further, in the case of Satpal
Singh Vs. State of Punjab reported in (2018) 13 SCC 813, the Hon'ble
Supreme Court reiterated that the rigors of granting bail under the NDPS Act
should be strictly followed and the conditions laid down under Section 37 of the
Act are to be mandatorily followed.
19. In view of the aforesaid facts and circumstances and also considering the
fact that the offence is under the NDPS Act where, while granting bail, a number
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of other factors, namely, nature of the contraband, the quantity and the nature
of accusation/involvement of the applicant are to be taken into consideration,
this Court is of the opinion that the petitioner is not entitled to the privilege of
grant of bail. This Court also cannot ignore the objective and purpose of the
enactment which is to curb the menace of drugs in the society.
20. Accordingly, the bail application stands rejected at this stage. This Court
would however request the learned Trial Court to expedite the hearing and
conclude the same within a reasonable time. It is also clarified that the
observations made above are tentative in nature and shall not cause prejudice
to either of the parties in the trial.
JUDGE
Comparing Assistant
