Gauhati High Court
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GAHC010049452025
2025:GAU-AS:3362
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./701/2025
SHAMBHU DEBBARMA
S/O- LATE SURJIYA KUMAR DEBBARMA, R/O- BODRAIPARA, PS- SIDHAI
MOHANPUR, DIST- WEST TRIPURA, TRIPURA
VERSUS
THE UNION OF INDIA
REP BY THE SC, NCB
Advocate for the Petitioner : MR. M BISWAS, S K DAS,J SINGPHO
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 25.03.2025
Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. K.
Jain, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing
Counsel, NCB for the respondent/Union of India.
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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. 146/2022, corresponding to NCB Crime No. 30/2021, under Sections
20(b)(ii)(C) & 29 of the NDPS Act, pending before the Court of learned
Additional Sessions Judge No. 2, Kamrup(M), Guwahati.
3. It is submitted by Mr. Biswas, learned counsel for the petitioner, that the
present accused/petitioner is innocent and he is not involved in the alleged
offence. He got arrested in connection with this case on 27.12.2021 and for last
more than 3 (three) years 2 (two) months & 26 (twenty six) days, he is in
custody. The charge-sheet of the case was filed on 22.06.2022 and the charge
was also framed and the presently the case is fixed for evidence. But, till date,
the prosecution could examine only 3 (three) witnesses out of 11 (eleven)
numbers of listed witnesses and the last witness was examined on 11.09.2024.
He, accordingly, submitted that 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. More so, he submitted
that the co-accused have already been granted bail by this Court vide Order
dated 27.02.2025, passed in Bail Appln. No. 3947/2024 & Bail Appln. NO.
3872/2024, and hence, the prayer of the present petitioner may also be
considered on the ground of parity. He is a 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
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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.)
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]
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(iii) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022
SCC OnLine SC 2068]
(iv) Shariful Islam @ Sharif Vs. State of West Bengal [Order
dated 01.08.2022 in SLP Crl. No. 4173/2022]
(v) Zakirul Islam @ Md Zakirul Islam @ Zakir Vs. The State of
Assam [Special Leave to Appeal (Crl.) No. 3632/2024, dated
15.07.2024]
(vi) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023
SCC OnLine SC 352]
(vii) Hussainara Khatoon & Ors. Vs. Home Secretary, State of
Bihar [(1980) 1 SCC 81]
(viii) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
(ix) Tofan Singh Vs. State of Tamil Nadu [(2013) 16 SCC 31]
(x) Chitta Biswas @ Subhas Vs. The State of West Bengal
[SLP(Crl.) No. 8823, decided on 07.02.2022]
(xi) Jarnail Singh Vs. State of Punjab [Special Leave to Appeal
(Crl.) No9s). 14867/2024]
(xii) Indrajit Rava Vs. The State of West Bengal [Special Leave to
Appeal (Crl.) No(s). 16768/2024]
(xiii) Biswajit Biswas Vs. The State of Assam [Special Leave to
Appeal (Crl.) No(s). 16170/2024]
(xiv) Ranjeet Mandal @ Ranjit Mandal [Bail Appln. No.
3855/2024, decided on 06.01.2025]
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(xv) Joydeb Mandal Vs. The Union of India [Bail Appln. No.
627/2025, decided on 19.03.2025]
(xvi) Anil Yadav Vs. Union of India [Bail Appln. No. 434/2024,
decided on 03.12.2024]
(xvii) Ranjeet Mandal @ Ranjit Mandal Vs. The Union of India [Bail
Appln. No. 3855/2024, decided on 06.01.2025
7. Citing the above referred judgments, Mr. Biswas, learned counsel for the
petitioner, accordingly 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. Jain, learned counsel appearing on behalf of the
respondent/NCB, raised objection in enlarging the accused/petitioner on bail at
this stage and accordingly submitted that the Investigating Officer has collected
sufficient incriminating materials against the present accused/petitioner showing
his direct involvement in the alleged offence. More so, there was a recovery of
contraband in commercial quantity and the same were seized from the
conscious possession of the present accused/petitioner and while giving his
voluntary statement, the present accused/petitioner also confessed that he
deals with the business of trafficking Ganja along with other co-accused
persons, namely, Pabitra Debbarma, Mithun Debbarma and Asish Debbarma,
who were also the supplier of the seized contraband. He further submitted that
in the charge-sheet also, the role played by the present accused/petitioner is
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mentioned by the Investigating Officer and from the statement of the other co-
accused persons and from the materials in the Case Diary, it is seen that there is
sufficient incriminating materials against the present accused/petitioner.
9. Mr. Jain further relied on a decision of Hon'ble Supreme Court passed in
Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.
[2005 0 Supreme(SC) 104], wherein it is held that " if a person accused of
offences which are non bailable is liable to be detained in custody during the
pendency of trial unless he is enlarged on bail in accordance with law. Such
detention cannot be question as being violative of Article 21 since the same is
authorized by law."
10. Mr. Jain 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:
(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
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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."
11. Accordingly, Mr. Jain 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 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. Thus, he raised vehement objection and submitted that
considering the nature and gravity of the offence, it is not at all a fit case to
enlarge the accused/petitioner on bail at this stage.
12. 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.
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13. It is the case of the petitioner that the accused is in custody for more than
3 (three) years, 2 (two) months & 26 (twenty six) days and till date, the
prosecution could examine only 3 (three) 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.
14. 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.
15. It is the admitted fact there are some incriminating materials in the Case
Diary which reveals from the statement made by the witnesses under 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 3 (three) 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.
16. 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.
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17. 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."
18. 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.
19. But, in the same time, it cannot be denied that the accused/petitioner is
behind the bar for more than 3 (three) years, 2 (two) months & 26 (twenty six)
days 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 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.
20. In the case of Rabi Prakash (supra), as relied by the learned counsel
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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."
21. 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.
22. Again, in the case of Nitish Adhikary @ Bapan Vs. The State of West
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.
23. 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.
24. 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.
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25. 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.
26. Same view has been expressed by the Apex Court in the case of Anjan
Nath (supra).
27. 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 listed witnesses, though it a fact that the
accused/petitioner is behind the bar for more than 3 (three) years, 2 (two)
months & 26 (twenty six) days.
28. 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 3 (three) years, 2 (two) months & 26
(twenty six) days may be considered as a ground for bail with the conditional
liberty considering the fundamental right guaranteed under Article 21 of the
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Constitution and, therefore, without going into the merit of the case, I am
inclined to grant bail to the present accused/petitioner.
29. 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. 2, Kamrup (M), Guwahati, the accused/petitioner,
namely, Shri Shambhu Debbarma, be enlarged on bail, subject to the following
conditions:
(i) that the petitioner shall appear before the Court of learned
Additional Sessions Judge No. 2, Kamrup (M), Guwahati, 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;
(iii) that the petitioner shall submit his Aadhar Card and PAN Card before
the learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati;
and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Additional Sessions Judge No. 2, Kamrup (M), Guwahati, without
prior permission.
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30. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
