Gauhati High Court

Page No.# 1/ vs The State Of Assam on 6 January, 2025

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GAHC010264982024




                                                                  2025:GAU-AS:106

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

                               Case No. : Bail Appln./3852/2024

            HUSSAIN AHMED
            S/O LATE ISQUE ALI
            VILL- ALAKULIPUR
            P.S. BADARPUR
            DIST. KARIMGANJ, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR

Advocate for the Respondent : PP, ASSAM,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 06.01.2025

Heard Mr. H. R. Choudhury, learned counsel for the petitioner. Also head Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent.

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2. This is an application under Section 483 of BNSS praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (NDPS) Case No. 148/2022, arising out of Badarpur P.S. Case No. 239/2022, under Sections 22(C)/25/29 of the NDPS Act, pending before the Court of learned Sessions Judge, Karimganj.

3. Scanned copy of the case record has already been received. Perused the same. Heard both sides.

4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is not involved in the alleged offence. He is working as an employee in M/S Aster Pvt. Ltd. as a Technician and on the day of occurrence, while he was at Mokoibhanga for some technical work on a Mobile Tower, which is near to the place of occurrence, he was arrested by the police alleging transportation of narcotic drugs. Accordingly, he was arrested in connection with this case on 12.10.2022 and since then, he is in judicial custody. However, he had no knowledge about the contraband and he got apprehended in connection with this case only on suspicion. Further he submitted that the accused/petitioner is behind the bar for last 2 (two) years and 3 (three) months, and till date, the prosecution could examine only 3 (three) witnesses out of 11 (eleven) numbers of witnesses, though the charge- sheet of the case was filed on 27.12.2022. He further submitted that the bail petition for the present petitioner was earlier rejected on 2 (two) occasions by this Court and while rejecting the bail prayer for the petitioner on 31.07.2024, a direction was given to the learned Trial Court below for completion of trial within Page No.# 3/10

6 (six) months. But, in spite of the said direction and even after lapse of more than 1 (one) year, no further witness could be examined by the prosecution and the last prosecution witness, i.e. PW-3, was examined only on 11.08.2023 and thus there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the prosecution and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail.

5. Mr. Choudhury further submitted that the seizure witnesses, i.e. PWs-1 & 2, also did not support the prosecution case and there is no evidence adduced by the PWs-1 & 2 against the present petitioner. In that regard, he relied on a decision of Hon'ble Apex Court passed in Ankur Chaudhary Vs. State of Madhya Pradesh [Special Leave to Appeal (Crl.) No. 4648/2024].

6. Mr. Choudhury, learned counsel for the petitioner, further relied on the following decisions in support of his case:

(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533]

(ii) Mohd Muslim @ Hussain Vs. State (NCT of Delhi) [2023 LiveLaw (SC) 260]

(iii) Nitish Adhikary @ Bapan Vs. The State of West Bengal [Special Leave to Appeal (Crl.) No(s). 5769/2022] Page No.# 4/10

(iv) Shariful Islam @ Sharif Vs. The State of West Bengal [SLP(Crl) 4173/2022 (Decided on 04.08.2022)]

(v) Dhirendra Kumar Choudhury Vs. The State of Assam [SLP (Crl) No. 5068/2024 (Decided on 14.08.2024)]

(vi) Jamir Uddin Vs. The State of Assam [Bail Appln. No. 2662/2024, decided on 11.11.2024]

7. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard that the contraband was recovered from the conscious possession of the present accused/petitioner and there are sufficient incriminating materials in the Case Diary against the present accused/petitioner showing his direct involvement in the alleged offence. He further submitted that as the case is of commercial quantity, rigor of Section 37 of NDPS Act will follow. He further submitted that in the case of Narcotics Control Bureau Vs. Mohit Agarwal [Criminal Appeal Nos. 1001-1002 of 2022, arising out of SLP (Crl.) No. 6128 of 2021], the Hon'ble Apex Court has held that long incarceration or delay in disposal only cannot be the sole ground for entertaining the bail application. Accordingly, he submitted that this is a case of commercial in nature wherein huge quantity of contraband is alleged to have been recovered from the possession of the present accused/petitioner and hence, his prayer may not be considered only on the ground of period of incarceration.

8. He further submitted that considering the materials available in the Case Diary, the bail petition for the present accused/petitioner was earlier rejected by Page No.# 5/10

this Court on 2 (two) occasions. Further he submitted that after recording of the evidence of PW-3 on 11.08.2023, another PW also appeared on 21.12.2023, but it could not be examined due to adjournment prayer made by the defence counsel and similarly on 06.06.2024 also, there was a prayer for adjournment. Thus, it is seen that it is not a case that there is laches on the part of the prosecution in the speedy trial of the case. He accordingly submitted that the period of detention of the accused cannot be considered as prolonged incarceration and the prosecution took every endeavor to procure the attendance of the PWs and there is every probability of disposal of the case within a reasonable period of time.

9. After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the case record and the annexures filed along with the petition.

10. As per the allegation, it is seen that on 11.10.2022, at about 4.30 p.m., an information was received from reliable source regarding transportation of large quantity of Narcotics drugs from Badarpur to Mokoibhanga and on the basis of the said information, the complainant, along with other police personnel, conducted Naka Checking and intercepted one Maruti Ignis Vehicle. During search, they found 48 numbers of black packets containing suspected YABA tablets each packet containing 200 tablets. Accordingly, observing all formalities, those were seized in presence of the witnesses and the accused persons were also arrested. However, it is the case of the petitioner that he was arrested by the police only on suspicion and the contrabands were not recovered from his conscious possession.

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11. It is a fact that the present accused/petitioner was arrested in connection with this case on 12.10.2022 with the allegation of recovery of commercial quantity of contraband from his possession and since then, the accused/petitioner is in custody. After his arrest and on completion of investigation, police find prima facie materials against him and accordingly filed the Charge-Sheet against him. Thus, it is seen that the case is of commercial quantity and hence, the rigor of Section 37 NDPS Act will follow.

12. 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."

13. 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.

14. But, in the same time, it cannot be denied that the accused/petitioner is Page No.# 7/10

behind the bar for last 2 (two) years & 3 (three) months from the date of his arrest and till then, the prosecution has been able to examine only 3 (three) witnesses out of 11 (eleven) numbers of witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

15. In the case of Rabi Prakash (supra), as relied by the learned counsel for the petitioner, 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."

16. In the case of Citta Biswas @ Subash Vs. The State of West Bengal [Criminal Appeal No (s) 245 of 2020 (Decided on 07.02.2022)] also, the bail was granted by the Apex Court considering the long period of incarceration and also considering the fact that out of 10 (ten) numbers of witnesses, only 4 (four) witnesses were examined by the prosecution.

17. Again, in the case of Nitish Adhikary @ Bapan (supra), considering the period of detention of 1 year 7 months, the bail was granted considering that the prosecution could examine only one witness and also considering that the case is at the preliminary stage of trial.

18. Further, in the case of Shariful Islam @ Sharif (supra) 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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19. 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.

20. 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)] also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.

21. 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)].

22. 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 filed the Charge-Sheet against the present accused/petitioner showing his involvement in the alleged offence. But it is also seen that in spite of filing of the Charge-Sheet in the year 2022, the prosecution could examine only 3 (three) witnesses out of 11 (eleven) numbers of witnesses, though it a fact that the accused/petitioner is behind the bar for more than 2 (two) years & 3 (three) months.

23. In view of above 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, this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more than Page No.# 9/10

2 (two) years & 3 (three) 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, I am inclined to grant bail to the present accused/petitioner.

24. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, one surety has to be a government servant, to the satisfaction of the learned Special Judge, Karimganj, the accused/petitioner, namely, Hussain Ahmed, 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;