Gauhati High Court
Page No.# 1/13 vs The Union Of India on 19 March, 2025
Page No.# 1/13
GAHC010045162025
2025:GAU-AS:2953
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./627/2025
JOYDEB MANDAL
S/O- LATE ARJUN MANDAL, R/O- MADHYA KRISHNAPUR, RAMCHANDRA
GHAT, PS TELIAMURA, DIST- KHOWAI, TRIPURA- 799207
VERSUS
THE UNION OF INDIA
REP BY THE SC, NCB
Advocate for the Petitioner : MR. M BISWAS, J SINGPHO
Advocate for the Respondent : SC, NCB,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 19.03.2025
Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. S.
C. Keyal, learned Standing Counsel, NCB for the 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 NDPS
Case No. 36/2023, corresponding to NCB Crime No. 21/2022, under Sections
20(b)(ii)(C) and 29 of NDPS Act, pending before the Court of learned Additional
Session Judge No. 5, Kamrup(M), Guwahati.
3. It is submitted by Mr. Biswas, learned counsel for the petitioner, that the
present accused/petitioner is innocent and nothing has been seized from his
conscious possession and the recovery was alleged to have been made from the
possession of the accused one Alindra Ray. The present petitioner got arrested
in connection with this case on 26.09.2022 and for last more than 2 (two) years,
5 (five) months and 21 (twenty one) days, he is in custody. But, till date, the
prosecution could examine only 7 (seven) witnesses out of 11 (eleven) numbers
of listed witnesses. More so, he submitted that the accused/petitioner was
arrested in connection with this case only on the basis of the statement made
by the co-accused under Section 67 of NDPS Act and it is a settled position of
law that the statement made under Section 67 NDPS Act is not admissible in the
eye of law. Further he submitted that 2 (two) other co-accused persons, whose
cases are also based on the same footing, have already been released on bail by
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the Co-ordinate Benches of this Court in Bail Appln. No. 2437/2024 and Bail
Appln. No. 478/2025. Furthermore, he submitted that till date only 7 (seven)
numbers of witnesses are being examined and for examination of remaining
witnesses will take considerable time and therefore the accused/petitioner may
be enlarged on bail considering his length of detention or period of long
incarceration, which is more than 2 (two) years, 5 (five) months and 21 (twenty
one) days. The accused/petitioner is permanent resident of his addressed
locality and will regularly appear before the Court to contest the case as and
when the date is fixed by the Court.
4. Mr. Biswas further relied on a decision of Hon'ble Apex Court passed in the
case of Kamaljit Singh Vs. State of Punjab & Anr., reported in (2005) 7
SCC 226, wherein it has been held that the law of parity should be applied
when the allegations brought against the co-accused persons are of similar in
nature. He accordingly emphasized on paragraph No. 2 of the judgment, which
reads as under:
"2. Heard the counsel for the parties. In the facts and circumstances of the case we
are of the view that it is an appropriate case in which the application of the appellant
for grant of anticipatory bail ought to have been allowed, particularly when on similar
allegations the remaining two accused have been granted the benefit of anticipatory
bail. In these circumstances the appeal is allowed and the appellant is directed to be
released on bail in the event of arrest or surrender on his furnishing bail bonds to the
satisfaction of the arresting officer or the Court, as the case may be, subject to the
conditions laid down in Section 438 CrPC."
5. He also relied on another decision of Hon'ble Supreme Court passed in the
case of Anjan Nath Vs. The State of Assam [Special Leave Appeal (Crl.)
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No. 9860/2023, dated 17.10.2023], wherein the bail was granted on the
ground that the co-accused who is similarly situated has already been released
on bail.
6. Mr. Biswas, learned counsel for the petitioner, also relied on the following
decisions in support of his case:
(i) Rupam Dey @ Raju Dey & Anr. Vs. U.O.I [Bail Appln. No.
478/2025, decided on 10.03.2025]
(ii) Ratan Das Vs. U.O.I. [Bail Appln. No. 2437/2024, decided on
17.02.2025]
(iii) Kamaljit Singh Vs. State of Punjab & Anr. [(2005) 7 SCC
226]
(iv) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022
SCC OnLine SC 2068]
(v) Shariful Islam @ Sharif Vs. State of West Bengal [Order
dated 01.08.2022 in SLP Crl. No. 4173/2022]
(vi) Zakirul Islam @ Md Zakirul Islam @ Zakir Vs. The State of
Assam [Special Leave to Appeal (Crl.) No. 3632/2024, dated
15.07.2024]
(vii) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023 SCC
OnLine SC 352]
(viii) Hussainara Khatoon & Ors. Vs. Home Secretary, State of
Bihar [(1980) 1 SCC 81]
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(ix) Amit Kumar Vs. U.O.I. [Bail Appln. No. 3805/2024, decided
on16.12.2024]
(x) Anil Yadav Vs. U.O.I. [Bail Appln. No. 434/2024, decided on
03.12.2024]
(xi) Md Nazmul Miah Vs. State of Assam [Bail Appln. No.
3582/2024, decided on 25.02.2025]
(xii) Md. Sahabuddin Kazi Vs. The State of Assam [Bail Appln. No.
2691/2023, decided on 14.09.2023]
(xiii) Abid Parvez @ Azad Perves Vs. U.O.I. [Bail Appln. No.
4307/2023, decided on 20.04.2024]
(xiv) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
(xv) Tofan Singh Vs. State of Tamil Nadu [(2013) 16 SCC 31]
(xvi) Chitta Biswas @ Subhas Vs. The State of West Bengal
[SLP(Crl.) No. 8823, decided on 07.02.2022]
7. Accordingly, Mr. Biswas, learned counsel for the petitioner, submitted that
as the co-accused have already been granted bail considering the period of long
incarceration and hence, considering the present petitioner on the same footing,
his bail prayer may be considered on the ground of parity as well as on the
ground of long incarceration.
8. In this context, Mr. S. C. Keyal, learned Standing Counsel, NCB, raised
objection in enlarging the accused/petitioner on bail at this stage and
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accordingly, he submitted that the Investigating Officer has collected sufficient
incriminating materials against the present accused/petitioner showing his direct
involvement in the alleged offence. He confessed before the I.O. regarding his
involvement in trafficking of Ganja in greed of money. Further, the report of the
I.O. reveals the detail about the involvement of the present petitioner in the
alleged offence. He further submitted that the final complaint was filed on
21.03.2023 and the charge was accordingly framed on 15.11.2023 and out of
11 (eleven) numbers of witnesses, 8 (eight) witnesses are already been
examined and the next date for evidence is fixed on 26.03.2025. He also
submitted that it is not a case that only on the basis of the statement made
under Section 67 NDPS Act the accused/petitioner was arrested in connection
with this case, but, during investigation, sufficient incriminating materials were
found against the present accused/ petitioner which has already been reflected
in paragraph No. 85 of the Charge-Sheet, wherefrom it is seen that the
accused/ petitioner was consciously involved in the trafficking of ganja for
money. Apart from that, the telephonic communications were also analyzed
during the investigation wherefrom also it is seen that there are specific
information regarding his involvement in the alleged offence.
9. Mr. Keyal further submitted that while dealing with a case of NDPS Act, the
object and purpose of the Act has to be considered and if such kind of offender
is allowed to go on bail, the very purpose and object of the Act itself will be
frustrated. In that context, he also relied on a decision of Hon'ble Supreme
Court passed in the case of Narcotics Control Bureau Vs. Kashif, reported in
2024 0 Supreme(SC) 1264, and emphasized on paragraph No. 39 of the
judgment, which reads as under:
"39. The upshot of the above discussion may be summarized as under:
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(i) The provisions of NDPS Act are required to be interpreted keeping in mind
the scheme, object and purpose of the Act; as also the impact on the society as
a whole. It has to be interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for
disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure
the early disposal of the seized contraband drugs and substances. It was
inserted in 1989 as one of the measures to implement and to give effect to the
International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in
sub-section (1) thereof, and any lapse or delayed compliance thereof would be
merely a procedural irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in
conducting the search and seizure during the course of investigation or
thereafter, would by itself not make the entire evidence collected during the
course of investigation, inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has been caused to
the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither
vitiate the trial nor would entitle the accused to be released on bail. The Court
will have to consider other circumstances and the other primary evidence
collected during the course of investigation, as also the statutory presumption
permissible under Section 54 of the NDPS Act."
10. Further he submitted that the trial is going on expeditiously and 8 (eight)
numbers of witnesses are already examined and accordingly, considering all
these aspects of the case, viz-a-viz the gravity of the offence, the prayer for bail
may be rejected at this stage. More so, he submitted that the case is of
commercial in nature and hence, rigor of Section 37 NDPS Act will follow
wherein the twin condition has to be satisfied that the accused is not guilty of
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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.
11. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the judgments relied by the
learned counsels for both sides.
12. It is the case of the petitioner that the accused is in custody for more than
2 (two) years, 5 (five) months and 21 (twenty one) days and till date, the
prosecution could examine only 7 (seven) witnesses out of 11 (eleven) numbers
of listed witnesses and hence, considering the period of incarceration, the
prayer for bail may be considered. Further it is the case of the petitioner that
there is no probability of disposal of the case within a short or reasonable period
as some of the vital witnesses are yet to be examined by the prosecution.
13. On the other hand, it is the case of the defence that the
accused/petitioner is alleged to have committed the offence under the
commercial quantity of the NDPS Act and hence, only on the ground of long
incarceration, he cannot be enlarged on bail.
14. It is the admitted fact the there are some incriminating materials in the
Case Diary which reveals from the statement made by the witnesses under
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Section 161 Cr.P.C. and apart from that, some other materials are also been
collected by the I.O. during the investigation of this case and on the basis of
which, the Charge-Sheet has been filed. It is also an admitted fact that the
Charge-Sheet was filed within the statutory period and accordingly the charges
were framed by the learned Trial Court below. However, it is a fact that till date,
the prosecution could examine only 7 (seven) witnesses out of 11 (eleven)
numbers of listed witnesses. But it also cannot be denied that the efforts have
been made by the learned Special Judge to procure the attendance of the
witnesses.
15. Further, it is also an admitted position that the case is of commercial
quantity and hence, the rigor of Section 37 NDPS Act will follow.
16. 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."
17. 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
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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.
18. But, in the same time, it cannot be denied that the accused/petitioner is
behind the bar for more than 2 (two) years, 5 (five) months and 21 (twenty
one) days from the date of his arrest and till then, the prosecution has been
able to examine only 7 (seven) witnesses out of 11 (eleven) numbers of listed
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.
19. 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."
20. In the case of Chitta Biswas @ Subash (supra) 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.
21. Again, in the case of Nitish Adhikary @ Bapan Vs. The State of West
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Bengal [(2022) SCC OnLine SC 2068], 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.
22. 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.
23. 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.
24. 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.
25. Same view has been expressed by the Apex Court in the case of Anjan
Nath (supra).
26. 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
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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 2023, the prosecution could examine only 7 (seven) witnesses out of
11 (eleven) numbers of listed witnesses, though it a fact that the
accused/petitioner is behind the bar for more than 2 (two) years, 5 (five)
months and 21 (twenty one) days.
27. So, considering all above aspects of the case and also considering the
observations 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 2 (two) years, 5 (five) months and 21
(twenty one) days month 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.
28. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees fifty thousand) 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 No. 5, Kamrup (M), Guwahati, the accused/petitioner,
namely, Shri Joydeb Mandal, be enlarged on bail, subject to the following
conditions:
(i) that the petitioner shall appear before the Court of learned
Additional Sessions Judge No. 5, Kamrup (M), Guwahati, on each
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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;
(iii) that the petitioner shall submit his Aadhar Card and PAN Card before
the learned Additional Sessions Judge No. 5, Kamrup (M), Guwahati;
and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Additional Sessions Judge No. 5, Kamrup (M), Guwahati, without
prior permission.
29. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
