Page No.# 1/5 vs The State Of Assam
2025 Latest Caselaw 393 Gua

Gauhati High Court

Page No.# 1/5 vs The State Of Assam on 9 May, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                        Page No.# 1/5

GAHC010061012025




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

                               Case No. : Bail Appln./900/2025

            BIKRAM BASUMATARY AND ANR
            S/O LT. RAJU BASUMATARY
            VILL- NO. 1 SAPKHAITI, BHEREMBAPUR
            P.O.AND P.S. UDALGURI
            DIST. UDALGURI, ASSAM, PIN-784509

            2: RAJESH HAJAWARI @ HAZOWARI
             S/O LT. BARENDRA HAJAWARI
            VILL- WARD NO. 5
             SAPKHAITI
            BHEREMBAPUR
             P.O. AND P.S. UDALGURI
            DIST. UDALGURI
            ASSAM
             PIN-78450

            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. S CHAUHAN, B CHOWHAN,R DEB,M. BORUAH,MR. P
MAZUMDER

Advocate for the Respondent : PP, ASSAM,
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                                BEFORE
                   HONOURABLE MRS. JUSTICE MALASRI NANDI

                                     ORDER

09.05.2025

Heard Mr. S. Chauhan, learned counsel appearing for the accused petitioners as well as Mr. B. Sarma, lear ned Additional Public Prosecutor for the State.

2. By this bail application filed under Section 483 BNSS, the accused- petitioners, namely, Bikram Basumatary and Rajesh Hajwari @ Rajesh Hazowari, have prayed for grant of bail in connection with Special (Nar) Case No. 106(BGN)/2023(arising out of Bongaigaon GRPS Case No. 43/2023) under Section 20(b)(ii)(C)/29 of NDPS Act, pending in the court of learned Special Judge, Bongaigaon.

3. It is submitted by the learned counsel for the petitioners that the petitioners have been languishing in judicial custody for around 2 years since their arrest on 31.05.2023. It is also submitted that out of 9 witnesses, 6 witnesses have been examined. By referring the judgment of Sariful Islam @ Sarif Vs. State of West Bengal, Hon'ble Supreme Court has made an observation that wherein the accused was in jail for 1 year 6 months and there was no likelihood of completion of trial in near future, bail was granted to the accused.

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4. It is further submitted that out of 9 witnesses, 6 witnesses are official witnesses. There is no mention of any independent witness has proved the case of recovery and seizure and as such there is every possibility of acquittal of the accused petitioners.

On that issue, learned counsel for the petitioners has relied on the following case laws -

a) Daulatram Vs. State of Haryana, reported in AIR 1995 SCC 1998

b) Sans Pal Singh Vs. State of Delhi, reported in (1998) 2 SCC 379

c) Gautam Saha and Anr. Vs. State of Assam , reported in (2024) 5 GLT 557

According to learned counsel for the petitioners, in view of such irregularities as above, the petitioners may be enlarged on bail.

5. In response, Mr. Sarma, learned Additional Public Prosecutor has submitted that charge was framed on 12.12.2023. Out of 9(nine) witnesses, 6(six) witnesses have already been examined and they have identified the accused petitioners. As the commercial quantity of ganja was recovered from the possession of the petitioners, Section 37 of NDPS Act is attracted herein this case. Apparently, there is no delay in proceeding of the case. Under such backdrop, the learned Additional Public Prosecutor has prayed for dismissal of the bail application.

6. Having heard the learned counsel for the parties and on perusal of the trial court record, it reveals that this is the second bail application filed by the petitioner. The earlier bail application vide No.2293/24 was rejected by this Court dated 23.10.2024. It is well settled by Hon'ble Supreme Court in catena of Page No.# 4/5

decisions that subsequent bail application is maintainable only when there is change of circumstance in favour of the accused. Reference in this context can be made to a decision in State of Tamil Nadu Vs. S.A. Raja, reported in (2005) 8 SCC 380. Here in this case, admittedly except the length of detention, no change of circumstances has taken place in favour of the accused petitioners. And learned Addl. P.P has rightly pointed out the fact at the time of hearing.

7. In the case of NCB Vs. Mohit Agarwal, reported in (2022) O Supreme SC 619, it was held by the Hon'ble Supreme Court that the length of period of his custody or the fact that charge-sheet has been filed and the trial has commenced are by themselves not consideration that can be treated as persuasive ground for granting relief to the accused u/s 37 of the NDPS Act.

8. That being the position, the length of detention can neither be a change of circumstance in favour of the accused nor be it a ground of releasing the accused on bail.

9. Admittedly, the quantity of contraband recovered from the possession of the accused petitioners are of commercial quantity and as such, the embargo u/s 37 of the NDPS Act will definitely come into play here in this case. Moreover, from the materials placed on record and also from the evidence of the witnesses, this Court is unable to derive its satisfaction that the accused petitioners are not guilty of the offence and they would not commit similar offence while on bail.

10. In view of the above discussion and under the facts and circumstances of the case, this Court is not inclined to grant bail to the petitioners.

11. Hence, prayer for bail is rejected.

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12. Accordingly, the bail application stands disposed of.

JUDGE

Comparing Assistant