Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 25 February, 2025

                                                                  Page No.# 1/9

GAHC010246922024




                                                            2025:GAU-AS:2005

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

                         Case No. : Bail Appln./2152/2024


         ALI AHMED
         S/O BABU MIAH
         R/O VILL- LALONG PART-II
         P.S.-LAKHIPUR
         DIST- CACHAR
         ASSAM


          VERSUS

         THE STATE OF ASSAM
         REPRESENTED BY THE PUBLIC PROSECUTOR
         ASSAM


         ------------
         Advocate for : MD A RAHMAN
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM
                                                                          Page No.# 2/9

                        BEFORE
         HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                    ORDER

Date : 25.02.2025

Heard Mr. A. Rahman, learned counsel for the petitioner. Also heard Mr. K. K. Das, learned Additional Public Prosecutor for the State respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (NDPS) Case No. 75/2022, arising out of North Guwahati P.S. Case No. 68/2022, under Sections 419/468/471/420 of the Indian Penal Code read with Section 22(c)/29 of the NDPS Act, 1985, pending before the Court of learned Additional Sessions Judge, Kamrup, Amingaon.

3. Though scanned copy of the LCR has already been received, but it is submitted by Mr. Das, learned Additional Public Prosecutor, that the same is not accompanied with the evidences of PWs- 4 & 5.

4. However, today, while the case was taken up for hearing, Mr. Thakuria, learned counsel appearing on behalf of the petitioner in Bail Appln. No. 3582/2024, furnished the certified copies of evidences of all the witnesses so far recorded by the learned Additional Sessions Judge, Kamrup, Amingaon.

5. It is submitted by Mr. Rahman, learned counsel for the petitioner, that the present petitioner is behind the bar for last 2 (two) years and 7 (seven) months Page No.# 3/9

and till date, 5 (five) numbers of witnesses are already been examined and PW- 6 is also examined-in-chief, though his cross-examination is reserved. He further submitted that from the evidences so far recorded by the learned Additional Sessions Judge, Kamrup, Amingaon, it is seen that the seizure witnesses, i.e. PWs- 2, 3, 4 & 5, did not implicate the present petitioner in the case. More so, the PW-6 was examined-in-chief on 06.12.2023 and since then, no other witnesses or PW-6 turned up and even after the lapse of more than 1 (one) year, the prosecution could not complete the evidence of the witnesses and the case is still at the stage of appearance. Thus, he submitted that considering this aspect of the case, the bail prayer of the present petitioner may be considered and he is ready and willing to furnish sufficient and genuine surety if he is granted with bail. More so, he will regularly appear before the learned Trial Court below as and when the date is fixed.

6. Mr. Rahman further submitted that the earlier bail application of the present petitioner was rejected by this Court vide order dated 09.10.2023, passed in Bail Appln. No. 2895/2023, considering the materials in the Case Diary viz-a-viz the case record, with a direction for completion of trial preferable within 6 (six) months. But, even after the lapse of more than 1 (one) year, the prosecution is not in a position for conclusion of the trial and the case is still at the stage of appearance.

7. Mr. Das, learned Additional Public Prosecutor, submitted in this regard that there are sufficient implication in the evidence of PW-1 and the PW-2 also made the statement of recovery of the contraband, however he could not identify the person from whom the recovery was made. He further submitted that the case is proceeding expeditiously and 6 (six) witnesses are already been examined by Page No.# 4/9

the prosecution and the case is at the verge of completion of the trial. He further submitted that the length of detention or period of incarceration cannot be the sole ground for considering the bail when the matter relates to the case of a commercial quantity. He also submitted that there are sufficient materials in the evidence of the PW-1 and PW-6 is yet to be cross-examined and thus, it cannot be said that there is probability of acquittal of the accused/petitioner. Rather, the I.O. had collected sufficient incriminating materials showing the involvement of the present petitioner in the alleged offence.

8. Mr. Das further submitted that since the case relates to commercial quantity, rigor of Section 37 of NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Accordingly, he raised vehement objection and submitted that it is not at all a fit case to enlarge the accused/petitioner on bail at this stage.

9. Mr. Das also relied on a decision of Hon'ble Supreme Court passed in the case of Baldev Singh Vs. State of Haryana, reported in (2015) 17 SCC

554.

10. After hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the Case Record along with the Page No.# 5/9

Case Diary and the other documents filed along with the petition.

11. It is a fact that the case was proceeded expeditiously till the examination of PW-6, but for last more than 1 (one) year, the prosecution has not been able to procure the attendance of PW-6 for his cross-examination and in the same time, it is also seen that the case is presently at the state of appearance as one of the accused had absconded after he was granted with bail. The learned Trial Court below had taken steps by issuing NBWA against the said accused, namely, Barul Alom, but till date, he could not be arrested in connection with this case and he is absconding since 02.04.2024. It is also an admitted position that the learned Trial Court below made all endeavour to procure the attendance of the said accused, but till date, the NBWA could not be executed and the case is pending at the stage of appearance for more than 1 (one) year.

12. More so, it is seen that the case is of commercial quantity and hence, the rigor of Section 37 NDPS Act will follow.

13. For ready reference, Section 37 NDPS Act is extracted hereinbelow:

"37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(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, 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."

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14. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail.

15. But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for last 2 (two) years and 7 (seven) months from the date of his arrest and till then, the prosecution could examine 5 (five) numbers of witnesses and the case is still at the stage of appearance as one of the accused is absconding after he was granted with bail. More so, even after lapse of more than 1 (one) year the PW-6 was examined-in-chief, he is yet to be cross- examined.

16. In the case of Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533, the Apex Court has granted bail to the accused with a view 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)9ii) of the NDPS Act."

17. Further, in the case of Shariful Islam @ Sharif Vs. The State of West Bengal [SLP(Crl) 4173/2022 (Decided on 04.08.2022)]also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted.

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18. The Apex Court in the case of Mohammed Salman Hanif Shaikh Vs. The State of Gujrat [SLP(Crl) No. 5530/2022 (Decided on 22.08.2022)]also granted bail to the accused without expressing any views on the merits of the case and only taking into consideration the period of custody.

19. In the case of Karnail Singh Vs. The State of Odisha [Criminal Appeal No. 2027/2022, arising out of SLP(Crl) No. 9067/2022 (Decided on 22.11.2022)]as well as in Dheeraj Kumar Shukla (supra) also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.

20. Same view has been expressed by the Apex Court in the case of Anjan Nath Vs. the State of Assam [SLP (CRL) No. 9860/2023 (Decided on 17.10.2023)].

21. In the instant case, it is seen that there are some materials available in the Case Diary and on the basis of which, the Investigating Officer has also filed the Charge-Sheet against the present accused/petitioner showing his involvement in the alleged offence. But it is also seen that the matter remains at the stage of appearance as one of the co-accused is still absconding. More so, the accused is behind the bar for last 2 (two) years & 7 (seven) months.

22. So, considering all above aspects of the case and also considering the observation made by the Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, Page No.# 8/9

this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more than 2 (two) years & 7 (seven) months may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Constitution and, therefore, without going into the merit of the case, I am inclined to grant bail to the present accused/petitioner.

23. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/- (Rupees one lakh) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Additional Sessions Judge, Kamrup, Amingaon, the accused/petitioner, namely, Md. Nazmul Miah, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Additional Sessions Judge, Kamrup, Amingaon, 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;