Gauhati High Court
Page No.# 1/15 vs The Union Of India on 6 January, 2025
Page No.# 1/15
GAHC010245872024
2025:GAU-AS:202
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3623/2024
RAJVIR
S/O SHRI BHAGWANA
R/O VILL HIRNAKHEDI,PO IMALIYA, PS CHANDPUR, DIST SAMBHAL,
UTTAR PRADESH 246725
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, DIRECTORATE OF
REVENUE INTELLIGENCE (DRI).
Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,S K DAS
Advocate for the Respondent : SC, DRI,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 06.01.2025
Heard Mr. M. Biswas, learned counsel for the petitioner. Also head Mr. S. C.
Keyal, learned Standing Counsel, DRI 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. 27/2022, corresponding to DRI Case No. 05/2022, under Section 20
(b) (ii) (C)/22(C)/29 of the NDPS Act, 1985, pending trial before the Court of
learned Additional Sessions Judge No. 5, Kamrup (M), Guwahati.
3. Scanned copy of the case record has already been received. Perused the
same. Heard both sides.
4. 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 was merely the handyman of the vehicle and he was neither the
supplier nor the owner of the vehicle. He further submitted that the accused got
arrested in connection with this case on 01.08.2021 and since then, he is in
judicial custody. Further he submitted that the accused/petitioner is behind the
bar for last 3 (three) years, 5 (five) months & 6 (six) days, and till date, the
prosecution could examine only 5 (five) witnesses out of 12 (twelve) numbers of
witnesses, though the charge-sheet of the case was filed on 01.02.2022. 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.
5. In support of his submission, Mr. Biswas, learned counsel for the petitioner,
further relied on the following decisions of Hon’ble Supreme Court as well as of
this Court:
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(i) Shariful Islam @ Sarif Vs. the State of West Bengal [Special
Leave to Appeal (Crl.) No. 4173/2022]
(ii) Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh
[Special Leave to Appeal (Crl.) No(s). 6690/2022]
(iii) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal
(Crl.) No(s). 9860/2023]
(iv) Chitta Biswas @ Subhas Vs. the State of West Bengal
[Criminal Appeal No(s). 245/2020 (@ SLP (Crl.) No.
8823/20190]
(v) Nitish Adhikary @ Bapan Vs. the State of Bengal [Special
Leave to Appeal (Crl.) No(s). 5769/2022]
(vi) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat
[Special Leave to Appeal (Crl.) No(s). 5530/2022]
(vii) Harish Mia @ Harij Mia Vs. The State of Assam [Bail Appln.
No. 2475/2023, decided on 30.08.2023]
(viii) Abu Sufian Vs. The State of Assam [Bail Appln. No.
1128/2023, decided on 11.05.2023]
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(ix) Bayar Debbarma @ Jakki & Anr. Vs. Union of India [Bail
Appln. No. 3548/2023, decided on 01.12.2023]
(x) Sanjay Kumar Shah Vs. Union of India [Bail Appln. No.
3881/2023, decided on 22.01.2024]
(xi) Krishna Biswas Vs. The Union of India [Bail Appln. No.
4605/2023, decided on 01.03.2024]
(xii) Amal Das Vs. The State of Assam [Bail Appln. No.
2750/2023, decided on 18.10.2023]
(xiii) Majinder Singh Vs. The Union of India [Bail Appln. No.
835/2024, decided on 20.04.2024]
(xiv) Bishal Debbarma Vs. Union of India [Bail Appln. No.
600/2024, decided on 19.04.2024]
(xv) Javaid Iqbal @ Javid Iqbal Vs. The Union of India [Bail
Appln. No. 538/2024, decided on 17.05.2024]
(xvi) Panchlal Singh Vs. The Union of India [Bail Appln. No.
1258/2024, decided on 04.06.2024]
(xvii) Puja Dutta Vs. Union of India [Puja Dutta Vs. Union of India,
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decided on 24.04.2024]
(xviii)Amit Kumar Vs. Union of India [Bail Appln. No. 3805/2024,
decided on 16.12.2024]
(xix) Anil Yadav Vs. Union of India & Anr.[Bail Appln. No.
434/2024, decided on 03.12.2024]
6. Citing the above referred decisions, it is submitted by Mr. Biswas, learned
counsel for the petitioner, that the petitioner may be granted with the privilege
of bail considering his long period of incarceration. Further he submitted that
the present accused/petitioner is a permanent resident of his addressed locality
and there is no chance of absconding and he will produce the genuine bailor
and will appear before the learned Trial Court below on each and every date to
be fixed by the Court.
7. In this context, Mr. S. C. Keyal, learned Standing Counsel, DRI, raised
objection in enlarging the accused/petitioner on bail at this stage and
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 entire contraband was seized
from the conscious possession of the present accused/ petitioner. Charge was
framed in the case on 01.02.2023 and the next date for evidence is fixed on
27.01.2025. More so, he submitted that the Charge-Sheet of this case was filed
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on 01.02.2022 and thereafter on 4 (four) dates, the counsel for the defence did
not appear and for which the learned Trial Court had to appoint one Legal Aid
Counsel on 30.11.2022 and thereafter 5 (five) numbers of witnesses have
already been examined and thus, it cannot be considered that there is a prolong
incarceration to consider the bail application for the present petitioner.
8. Mr. Keyal further submitted that it is a case of commercial quantity and
there are sufficient incriminating materials so far collected by the I.O. which is
available in the Case Diary and it cannot be denied the involvement of the
present accused/ petitioner in the alleged offence. Accordingly, he submitted
that considering the nature of allegation, which is of commercial quantity, the
accused/petitioner cannot be released on bail only considering the period of
incarceration.
9. Mr. Keyal 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. He also relied on another decision of Hon’ble Supreme Court passed in
Jayshree Kanabar vs. State of Maharashtra & ors. [SLP (Crl.) No.
15341/2023 & SLP (Crl.) No. 15820/2023] and emphasized on paragraph
No. 13 of the judgment, which reads as under:
“13. In view of the observations tantamounting to findings, as referred above and in
Page No.# 7/15the absence of consideration in the required manner, the application for bail moved by
the respondent Nos.2 and 3 ought to have been considered in view of the involvement
of the allegation of commission of offences under MCOCA in view of Section 21(4) of
MCOCA, the impugned order invites interference. As noted hereinbefore, it is a fact
that the grant of bail was not in exercise of power of the High Court as a constitutional
Court on the ground of violation of Part-III of the Constitution. It is also a fact that the
case on hand involves allegation of commission of offences of murder punishable
under Section 302, IPC.”
11. Mr. Keyal further relied on a decision of Hon’ble Supreme Court which was
reported vide 2024 0 Supreme(SC) 1264 [Narcotics Control Bureau Vs.
Kashif] and emphasized on paragraph No. 39 (i) (ii), 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.
…”
12. He also relied on a decision of the Hon’ble Apex Court passed in the case
of The State of Meghalaya Vs. Lalrintluanga Sailo & Anr. [Special Leave
to Appeal (Crl.) No(s). 16021/2023], wherein the Apex Court has
expressed the view that the bail cannot be granted even to a HIV patient only
on the sole reason of illness and if the twin conditions under Section 37 NDPS
Act are not satisfied. Further it is held that while considering the application for
bail made by an accused involved in an offence under NDPS Act a liberal
approach ignoring the mandate under Section 37 NDPS Act is impermissible. He
further emphasized on paragraph Nos. 8 & 10 of the judgment, which read as
under:
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“8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions
referred supra revealing the consistent view of this Court that while considering the
application for bail made by an accused involved in an offence under NDPS Act a
liberal approach ignoring the mandate under Section 37 of the NDPS Act is
impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which
is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided
while passing orders on such applications.
…
10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS Act,
would reveal that the quantity of the contraband involved is 1.040 kgs of heroin. The
impugned order granting bail to accused-Smt. X, dated 29.09.2023 would reveal, this
time also, the bail was granted on the ground that she is suffering from HIV and
conspicuously, without adverting to the mandate under Section 37(1)(b)(ii), NDPS Act,
even after 6 taking note of the fact that the rigour of Section 37, NDPS Act, calls for
consideration in view of the involvement of commercial quantity of the contraband
substance. When the accused is involved in offences under Section 21(c)/29 of NDPS
Act, more than one occasion and when the quantity of the contraband substance viz.,
heroin is 1.040 Kgs, much above the commercial quantity, then the non-consideration
of the provisions under Section 37, NDPS Act, has to be taken as a very serious lapse.
In cases of like nature, granting bail solely on the ground mentioned, relying on the
decision in Bhawani Singh v. State of Rajasthan3 would not only go against the spirit
of the said decision but also would give a wrong message to the society that being a
patient of such a disease is a license to indulge in such serious offences with impunity.
In the contextual situation it is to be noted that in Bhawani Singh‘s case the offence(s)
involved was not one under the NDPS Act. We have no hesitation to say that in the
above circumstances it can only be held that the twin conditions under Section 37 of
the NDPS Act, are not satisfied and on the sole reason that the accused is a HIV
patient, cannot be a reason to enlarge her on bail. Since the impugned order was
passed without adhering to the said provision and in view of the rigour thereunder the
accused-Smt.X is not entitled to be released on bail, the impugned order invites
interference.”
13. He further relied on following decisions of Hon’ble Apex Court in support of
his submissions:
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(i) State of kerala Vs. Rajesh [(2020) 12 SCC 122]
(ii) Talab Mazi Hussain Vs. Madhukar Purushattam Mondkar &
ors. [1958 SCR 1226]
(iii) Narcotics Control Bureau Vs. Mohit Aggarwal [2022 SCC
OnLine 891]
(iv) Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI [(2007) 1 SCC
70]
(v) Pramod Kumar Saxena Vs. Union of India [(2008) 9 SCC
685]
(vi) Satyender Kumar Antil Vs. CBI [(2022) 10 SCC 51]
(vii) Gurwinder Singh Vs. State of Punjab [2024 0 Supreme (SC)
104]
14. Citing the above referred judgments, it is submitted by Mr. Keyal, learned
Standing Counsel, DRI, that the long incarceration and the violation of
fundamental rights under Article 21 of the Constitution of India or the delay in
trial cannot be the ground for allowing the accused persons to go on bail in a
heinous crime like NDPS case. He further submitted that Article 21 of the
Constitution guarantees the personal liberty to everyone, however the same
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cannot be taken away except in accordance with the procedures established by
law. In a criminal law, a person accused of an offence, which is non-bailable, is
liable to be detained in custody during the pendency of the trial unless he is
enlarged on bail in accordance with law. Such detention cannot be questioned
as being violative of Article 21 of since the same is authorized by law. When the
seriousness of an offence is such, the mere fact that he was in jail for however
long time should not be the concern of the court and in heinous crime, length of
tenure in custody may not be the only factor of consideration for the grant of
bail. He further submitted that granting bail to the accused/petitioner at this
stage may hamper the trial of the case or there may be the influencing of
witnesses who are yet to be examined and there is every likelihood of the
accused jumping over the condition of bail.
15. After hearing the submissions made by the learned counsels for both
sides, I have perused the case record and the judgments relied by the learned
counsels for both sides.
16. It is the case of the petitioner that the accused is in custody for more than
3 (three) years, 5 (five) months & 6 (six) days and till date, the prosecution
could examine only 5 (five) witnesses out of 12 (twelve) 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
this case within a short and reasonable period as some of the vital witnesses are
yet to be examined by the prosecution.
17. On the other hand, it is the case of the defence that the
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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 and in that context, the learned
Standing Counsel, DRI has already relied on the above referred case laws.
18. 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
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 was 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 5 (five) witnesses out of 12 (twelve) numbers of
listed witnesses including some more vital witnesses of the prosecution. But it
also cannot be denied that the efforts have been made by the learned Special
Judge to procure the attendance of the witnesses. In the same time, it is also
seen that on several occasion, the prosecution as well as the defence also
prayed adjournment of this case.
19. 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.
20. 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
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(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.”
21. 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.
22. But, in the same time, it cannot be denied that the accused/petitioner is
behind the bar for more than 3 (three) years, 5 (five) months & 6 (six) days
from the date of his arrest and till then, the prosecution has been able to
examine only 5 (five) witnesses out of 12 (twelve) 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.
23. The Hon’ble Supreme Court in the case of Rabi Prakash Vs. State of
Odisha [2023 SCC OnLine SC 1109], 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)(ii) of the NDPS Act.”
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24. 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.
25. 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.
26. 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.
27. The Hon’ble Apex Court in the case of Mohammed Salman Hanif
Shaikh (supra) 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.
28. 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.
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29. Same view has been expressed by the Apex Court in the case of Anjan
Nath (supra).
30. 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 in spite of filing of the Charge-Sheet
in the year 2022, the prosecution could examine only 5 (five) witnesses out of
12 (twelve) numbers of listed witnesses, though it a fact that the
accused/petitioner is behind the bar for more than 3 (three) years, 5 (five)
months & 6 (six) days.
31. So, considering all above aspects of the case and also considering the
observation made by the Hon’ble 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, 5 (five)
months & 6 (six) days 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.
32. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees twenty 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
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accused/petitioner, namely, Rajvir, 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
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.
33. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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