Gauhati High Court
Page No.# 1/12 vs The State Of Assam on 22 January, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/12
GAHC010206802024
2025:GAU-AS:668
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3068/2024
SMTI. LALPIAN MAWII @ KHUMI KHABUG
W/O LT. ZORAMTHARA, R/O B-67/D BIAL-II, DAWRPUI VENGTHAR, P.S.-
VAIVAKAWM, DIST- AIZAWAL, MIZORAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocates for the petitioner(s): Mr. Asif Ahmed
Advocates for the respondents : Mr. D Das, Additional Public Prosecutor,
Assam
Date of hearing & judgment : 22.01.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (ORAL)
Heard Mr. Asif Ahmed, the learned counsel appearing on behalf of the
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petitioner. Mr. D. Das, the learned Additional Public Prosecutor Assam appears
on behalf of the State.
2. This is an application under Section 483 of the Bharatiya Nagarik Surakhsha
Sanhita, 2023 for granting bail to the petitioner, namely, Lalpian Mawii @
Khumi Khabug, who was arrested on 27.08.2021 in connection with NDPS
Case No.18/2022, which is presently pending before the learned Additional
District and Sessions Judge No.2, Kamrup(M) at Guwahati arising out of
Bhangagarh Police Station Case No. 507/2021 under Sections 22(c)/29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be
referred to as ‘the Act of 1985’).
3. A perusal of the FIR enclosed to the instant application reveals that one Mr.
Omar Faruk, SI UB of Police, Bhangagarh Police Station had lodged an FIR
stating inter-alia that on 26.08.2021, at 4:30 PM acting on a tip off the
informant including the WSI, Woman Constable, 1 Sec.Commando BN.1Sec of
CRPF B128 Crime Staff of East District PAPA Staff along with DCP (east), ACP
Dispur arrived at Kunjalata Bibah Bhawan near Mizoram House, G.S. Road and
searched the room No.15 of Kunjalata Bibah Bhawan as authorized by ACP,
Dispur and recovered one packet of yaba tablets from the petitioner, 42 years
resident of B-67/D, BIAL-II, DAWRPUI VENGTHAR, near YMA Hall, Aizawl and
opened the packet in front of witnesses where 8500 numbers of yaba tablets
weighing 950 grams including plastic packets (suspected psychotropic
substance) which was duly seized on 26.08.2021 at 6:10 PM from the
possession of the said Smti. Lalpian Mawii by observing all formalities as per the
Act of 1985. It was further mentioned that during the search, one JIO LYF
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mobile handset bearing Mobile No.9863724502 was also seized from her
possession. Further to that, it was also mentioned that on preliminary
investigation, it was learnt that the petitioner kept the yaba tablets with her for
commercial selling to other drug peddlers for her personal gain. On the basis of
the said FIR being lodged, Bhangagarh P.S. Case No.507/2021 was registered
under Sections 22(c)/29 of the Act of 1985.
4. It is further seen that subsequent to the lodging of the FIR and on the
basis of some alleged statement made by the petitioner, one Dimsiannem @
Princilla, a resident of East Kasi Hills, Meghalaya was also arrested on
01.09.2021. Subsequent thereto, the investigating officer submitted the charge-
sheet being charge sheet No.85/2021 dated 21.12.2021 under Sections
22(c)/29 of the Act of 1985 against the petitioner as well as the said
Dimsiannem @ Princilla.
5. It is relevant to take note of that pursuant to the charge sheet being
submitted, charges were framed by the Court of the learned Additional District
& Sessions Judge No.2 Kamrup(M) at Guwahati on 11.04.2022 under Sections
22(c)/29 of the Act of 1985. This Court further takes note of that the co-
accused, i.e. Dimsiannem @ Princilla had filed a bail application before this
Court which was registered and numbered as Bail Application No.2090/2022.
This Court, by the judgment and order dated 27.05.2022 had enlarged the said
co-accused, namely Dimsiannem @ Princilla, subject to certain terms and
conditions which were required to be adhered to. The question, however arises
in the instant proceedings as to whether the petitioner herein, who has been
languishing in the jail since her arrest i.e. from 27.08.2021 would be entitled to
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the privilege of bail.
6. Mr. Asif Ahmed, the learned counsel appearing on behalf of the petitioner
submitted that the respondent authorities have been delaying the disposal of
the trial and thereby affecting the fundamental rights of the petitioner under
Article 21 of the Constitution. He further submitted that the petitioner had been
falsely implicated in the FIR. The learned counsel further submitted that the
stringent provisions of Section 37 of the Act of 1985 cannot go counter to the
fundamental rights under Article 21 of the Constitution.
7. Mr. D Das, the learned Additional Public Prosecutor, Assam appearing on
behalf of the State, however, opposed the petition stating, inter alia, that the
recovery was made from the petitioner and as such, the petitioner does not
deserve the concession of regular bail.
8. The learned Additional Public Prosecutor, Assam further submitted that
steps have been duly taken for the purpose of early completion of the trial and
as such, when the trial is at the stage of evidence of the prosecution witnesses,
the petitioner be not enlarged on bail.
9. This Court had duly heard the learned counsels appearing on behalf of the
parties and had given an anxious consideration to the materials on record. This
Court had duly perused the charge sheet which was submitted on 21.12.2021,
wherein there are specific allegations that the alleged Yaba tablets were
recovered from the petitioner. Be that as it may, a question, therefore, arises as
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to whether the compliance required under Section 37 of the Act of 1985 can be
pressed into the service, taking into account that the petitioner had been in
detention since 27.08.2021, which is more than three and a half years.
10. This Court at this stage finds it relevant to take note of the judgment of
the Supreme Court in the case of Hussainara Khatoon vs. Home Secy.,
State of Bihar, reported in (1980) 1 SCC 81, wherein the Supreme Court had
declared that the right to speedy trial of offenders facing criminal charges is
“implicit in the broad sweep and content of Article 21 as interpreted by the
Court”. The Supreme Court observed that the procedure prescribed by law for
depriving a person of liberty cannot be “reasonable, fair or just” unless that
procedure ensures a speedy trial for determination of the guilt of such person. It
was observed that no procedure which does not ensure a reasonably quick trial
can be regarded as reasonable, fair or just and it would fall foul of Article 21.
11. In another judgment of the Supreme Court in the case of Abdul Rehman
Antulay Vs. R.S. Nayak, reported in (1992) 1 SCC 225, the Supreme Court
emphasized the right to speedy trial and further held that an accused facing
prolonged trial has no option. It was observed that the State or the complainant
who prosecutes him is obligated to proceed with the case with reasonable
promptitude. The Supreme Court further observed that of course, in a given
case, if any accused demands speedy trial and yet he is not given one, may be
a relevant factor in his favour. But the accused cannot be disentitled from
complaining of infringement of his right to speedy trial on the ground that he
did not ask for or insist upon a speedy trial.
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12. In a recent judgment of the Supreme Court in the case of Javed Gulam
Nabi Shaikh Vs. the State of Maharashtra and Another , reported in
(2024) 9 SCC 813, it was held at paragraphs 16, 17 and 18, which being
relevant are reproduced hereinunder:
“16. Criminals are not born but made. The human potential in everyone is good and
so, never write off any criminal as beyond redemption. This humanist fundamental is
often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has
a past and every sinner a future. When a crime is committed, a variety of factors is
responsible for making the offender commit the crime. Those factors may be social and
economic, may be, the result of value erosion or parental neglect; may be, because of
the stress of circumstances, or the manifestation of temptations in a milieu of affluence
contrasted with indigence or other privations.
17. If the State or any prosecuting agency including the court concerned has no
wherewithal to provide or protect the fundamental right of an accused to have a speedy
trial as enshrined under Article 21 of the Constitution then the State or any other
prosecuting agency should not oppose the plea for bail on the ground that the crime
committed is serious. Article 21 of the Constitution applies irrespective of the nature of
the crime.
18. We may hasten to add that the petitioner is still an accused; not a convict. The
over-arching postulate of criminal jurisprudence that an accused is presumed to be
innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the
penal law may be.”
13. This Court further takes note of a recent order passed by the Supreme
Court in the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi)
reported in 2023 SCC Online SC 352 wherein the Supreme Court observed
the following pertaining to a bail plea in respect of a case under the Act of 1985
pertaining to commercial quantity contraband. Paragraphs 22, 23 and 24 of the
said judgment being relevant are reproduced hereinunder:
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“22. Before parting, it would be important to reflect that laws which impose
stringent conditions for grant of bail, may be necessary in public interest; yet, if trials
are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails
are overcrowded and their living conditions, more often than not, appalling. According
to the Union Home Ministry’s response to Parliament, the National Crime RecordsBureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were
lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852
were convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation”
a term described by the Kerala High Court in A Convict Prisoner v. State as”a radical
transformation” whereby the prisoner:
“loses his identity. He is known by a number. He loses personal possessions. He has
no personal relationships. Psychological problems result from loss of freedom, status,
possessions, dignity any autonomy of personal life. The inmate culture of prison turns
out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception
changes.”
24. There is a further danger of the prisoner turning to crime, “as crime not only
turns admirable, but the more professional the crime, more honour is paid to the
criminal (also see Donald Clemmer’s ‘The Prison Community’ published in 1940).
Incarceration has further deleterious effects – where the accused belongs to the
weakest economic strata: immediate loss of livelihood, and in several cases, scattering
of families as well as loss of family bonds and alienation from society. The courts
therefore, have to be sensitive to these aspects (because in the event of an acquittal,
the loss to the accused is irreparable), and ensure that trials – especially in cases, where
special laws enact stringent provisions, are taken up and concluded speedily.”
14. From the above decisions so rendered by the Supreme Court, it is therefore
clear that the right to speedy and expeditious trial is not only a vital safeguard
to prevent undue and oppressive incarceration, but it is also to mitigate anxiety
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and concern accompanying the accusation, as well as to curtail any impairment
in the ability of an accused to defend himself. There is also an overarching
societal interest paving way for a speedy trial. The concept of speedy trial is
amalgamated into Article 21 as an essential part of the fundamental right to life
and liberty, guaranteed and preserved under our Constitution. The right to
speedy trial begins with the actual restraint imposed at the time of the arrest of
the accused and the consequent incarceration which continues at all stages,
namely the stage of investigation, inquiry, trial, appeal and revision, so that any
possible prejudice that may result due to impermissible and avoidable delay
since the time of the commission of the offence till the criminal proceedings
consummates into a finality, could be averted. The speedy trial, early hearing
and quick disposal are sine qua non of criminal jurisprudence. The overcrowded
Court-dockets, the heavy volume of work and the resultant pressure on the
prosecution and the Police, indubitably keeps the entire criminal jurisprudential
mechanism under stress and strain. However, this cannot be an excuse to keep
the accused in incarceration for an indefinite period of time. It does not serve
any credit to the criminal justice system, rather it makes for a sad state of
affairs.
15. The guarantee of a speedy trial is intended to avoid oppression and prevent
delay by imposing on the Court and the prosecution an obligation to proceed
with the trial with a reasonable dispatch. The guarantee serves a threefold
purpose. First, it protects the accused against oppressive pre- trial
imprisonment; secondly, it relieves the accused of the anxiety and public
suspicion due to unresolved criminal charges and lastly, it protects against the
risk that evidence will be lost on memories dimmed by the passage of time,
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thus, impairing the ability of the accused to defend himself. It goes without
saying that the consequences of a pre-trial detention are grave. It is a settled
position as per criminal jurisprudence that an accused is presumed innocent, till
proven otherwise. This Court cannot be unmindful that the burden of detention
of such an accused frequently falls heavily on the innocent members of the
family.
16. There is another aspect of the matter which deserves consideration at this
stage. The allegation in the present case relates to an accused being involved in
an FIR relating to commercial quantity of a contraband under the Act of 1985.
While considering a bail petition in a case involving commercial quantity, the
Court has to keep in mind the rigours enumerated under Section 37 of the Act
of 1985, which mandate that the Court can grant bail to an accused only after
hearing the public prosecutor and after having satisfied itself of the twin
conditions which are reasonable grounds for believing that the accused is not
guilty of the offence charged/alleged and that he is not likely to commit any
offence while on bail. The stringent rigours of Section 37 of the Act of 1985
must be meticulously scrutinized against the backdrop of the accused’s
fundamental rights to speedy trial. The right to life and personal liberty cannot
be rendered nugatory for unwarranted delays in the judicial process, particularly
where such delay(s) is neither attributable to the accused nor justified at the
end of the prosecution by cogent reasons. An individual cannot be kept behind
bars for an inordinate period of time by taking shelter to the rigours laid down
in Section 37 of the Act of 1985. The legislature in its wisdom, in order to
ensure speedy and timely disposal of the cases under the Act of 1985 had
provided for constitution of special courts under Section 36-A of the Act of 1985.
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However, this Court cannot turn a blind eye to the protracted delays and the
systematic inefficiency that frustrate this legislative purpose. A Court of law is
duty-bound to ensure that it does not become complicit in violation of an
individual’s fundamental rights, notwithstanding anything contained in a statute.
While dealing with a bail petition in a case governed by the rigours of Section 37
of the Act of 1985, this Court must strike a judicial balance between the
legislative intent to curb the menace of drugs and the sacrosanct right of the
accused to a fair and expeditious trial. Prolonged incarceration, without
justifiable cause, risks transforming pre-trial detention into punitive
imprisonment, an outcome antithetical to the principle of justice and equity.
17. In the backdrop of the above, now let this Court take note of the facts
involved in the instant proceedings. It would be seen that the petitioner herein
has been in detention from 27.08.2021. The charge sheet was submitted on
21.12.2021 and the charges were framed on 11.04.2022. The instant bail
application was filed on 27.09.2024. Thereupon, when the matter was listed
before this Court on 18.11.2024, 27.11.2024, 29.11.2024, 16.12.2024 as well as
06.01.2025, this Court passed certain directions so that the trial in respect to
NDPS Case No. 18/2022 is given some impetus. However, the order sheets
which have been produced during the course of the hearing including the order
sheet produced today dated 17.01.2025 shows a dismal state of affairs,
inasmuch as, the prosecution had not taken active steps for the purpose of an
early culmination of the trial. Summons are still issued for the prosecution
witnesses to appear and time and again they have not appeared.
18. Under such circumstances, in the opinion of this Court, the snail pace
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manner in which the trial is proceeding coupled with the protracted
incarceration of the petitioner since more than three and a half years, it is the
opinion of this Court that the instant bail petition is required to be allowed.
19. Accordingly, the petitioner, namely, Lalpian Mawii @ Khumi Khabug is
allowed to be enlarged on bail on furnishing a bail bond of Rs.1,00,000/-
(Rupees One Lac) only with two local securities of the like amount to the
satisfaction of the learned Additional District and Sessions Judge No.2,
Kamrup(M) at Guwahati subject to the following conditions:
(a) The accused petitioner shall not leave the territorial jurisdiction of the
Police Station Vaivakawn, in the District of Aizawl, Mizoram without prior written
permission from the Officer-in-Charge of the said Police Station;
(b) the accused petitioner shall not tamper with the evidence of the case;
(c) the accused 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/her from disclosing such facts to the Court or to any
police officer;
(d) the accused petitioner shall regularly appear before the Court below and
the learned Court below shall be at liberty to continue the trial of the case
keeping the petitioner in custody in the event the petitioner fails to appear
before the Court below on a single date fixed by the Court without there being
any satisfactory ground(s) assigned therein;
(e) the accused petitioner shall deposit her passport/visa, etc, if any, in the
learned Court below; and
(f) the accused petitioner shall not commit any offence under the Act of
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20. The observation made herein above are only tentative to the consideration
of the bail application and the trial Court shall not be influenced in any manner
during the trial of the said proceedings.
21. With the above observations and directions, this Bail Application stands
allowed.
JUDGE
Comparing Assistant
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