Amit Kumar v. Union of India

ORDER Date : 16.12.2024

Heard Mr. N. N. B. Choudhury, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent.

¶2This is an application under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail to the accused/ petitioner, who has been arrested in connection with NDPS Case No. 01/2023, under Section 8 (c) read with 20(b)(ii)

(C) and 29 of the NDPS Act, 1985, corresponding to NCB Crime No. 19/2022, pending before the Court of Additional Sessions Judge No. 5, Kamrup (M), Guwahati.

¶3It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his possession, though as per allegation, the contraband was seized from the possession of the co-accused. The present petitioner got arrested in connection with this case on 17.11.2022 and for last more than 2 (two) years and 1 (one) month, he is in custody. But till date, the prosecution could examine only 3 (three) witnesses out of 8 (eight) numbers of listed witnesses. 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. Page No.# 3/15

¶4Mr. Choudhury further submitted that he never took any adjournment in the case and in spite of supplying of illegible copy, he cross-examined PWs-1, 2 & 3, and till date, no legible copy is furnished to the petitioner in spite of specific direction made by the learned Special Judge. The case may be delayed due to non-availability of the Presiding Officer and the adjournment sought by the prosecution side as well as absence of the PWs, but there is no fault on the part of the present accused/petitioner and no adjournment was prayed by him till date.

¶5In support of his submission, Mr. Choudhury, learned counsel for the petitioner, further relied on the following decisions:

(i) Md. Salman Hanif Shaikh Vs. State of Gujarat [2022 SCC OnLine SC 2071, dated 22.08.2022]

(ii) Anjan Nath Vs. The State of Assam [Special Leave Appeal (Crl.) No. 9860/2023, dated 17.10.2023]

(iii) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068]

(iv) Gopal Krishna Patra alias Gopalrusma Vs. Union of India [2022 SCC OnLine SC 2070]

(v) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC Page No.# 4/15 1109]

(vi) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(vii) Kamaljit Singh Vs. State of Punjab & Anr. [(2005) 7 SCC 226]

(viii) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023 SCC OnLine SC 352]

(ix) Md. Sahabuddin Kazi Vs. The State of Assam [B.A. No. 2691/2023]

(x) Zakirul Islam @ Md Zakirul Islam @ Zakir Vs. The State of Assam [Special Leave to Appeal (Crl.) No. 3632/2024, dated

15.07.2024]

(xi) Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar [(1980) 1 SCC 81]

(xii) Abid Parvez @ Azad Perves Vs. U.O.I. [B.A. No. 4307/2023]

(xiii) Lalkhohen Mangte Vs. The State of Assam [B.A. No. 3668/2023] Page No.# 5/15

(xiv) Md. Farjul Haque Vs. State of Assam [AB No. 2887/2023, dated 05.10.2023]

(xv) Md. Farjul Haque Vs. State of Assam [B.A. No. 26/2024]

(xvi) Tofan Singh Vs. State of Tamil Nadu [(2013) 16 SCC 31]

(xvii) Dipakbhai Jagdishchandra Patel Vs. State of Gujarat & Anr. [(2019) 16 SCC 547]

¶6Mr. Choudhury further relied on a decision of Hon'ble Supreme Court passed in V. K. Sasikala Vs. State represented by Superintendent of Police [(2012) 9 SCC 771], wherein it has been held that a just, fair and transparent investigation is the right of an accused to ask for all such documents that may be entitled to get.

¶7He further relied on another decision of this Court passed in Ratna Ram & Anr. Vs. State of Assam [(2022) 4 GLT 424], wherein also, the co-ordinate Bench of this Court granted bail to the accused therein considering the ground of parity.

¶8Accordingly, Mr. Choudhury, learned counsel for the petitioner, submitted that as the co-accused, from whose possession the contraband was alleged to have been recovered, has already been granted bail considering the period of long incarceration and hence, considering the present petitioner on the same Page No.# 6/15 footing, his bail prayer may be considered on the ground of parity as well as on the ground of long incarceration.

¶9In this context, Mr. S. C. Keyal, learned Standing Counsel, NCB, 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. Charge was framed on 08.05.2023 and the next date for evidence was fixed on 20.05.2023. However, thereafter, only 3 (three) PWs are being examined by the prosecution and the PW-3 is yet to be cross-examined by the defence. He further submitted that in between the dates fixed by the learned Special Judge in 2 (two) occasions, the learned Special Judge was on leave and in one occasion, the defence also prayed for an adjournment and the next date was fixed for evidence on 06.12.2024, wherein further cross-evidence of PW-3 was recorded, though the evidence of said PW-3 could not be discharged as some more points are yet to be cross-examined. Further, on the next date fixed, i.e. on 13.12.2024, the PW-3 was partially cross-examined fixing 24.12.2024 for further cross-evidence of PW-3. Mr. Keyal further submitted that after the discharge of the PW-3, evidence of one more vital witness of the prosecution, i.e. the I.O., will be completed by the prosecution and hence, there is every probability of completion of trial within a reasonable period.

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¶10It is further submitted by Mr. Keyal that the present accused/petitioner is the main culprit and from analysis of his bank statement, it is seen that approximately Rs. 10,47,000/- was transferred in the account of Baljit Kumar during the period from 01.04.2022 to 10.07.2022 from the account of the present petitioner.

¶11Mr. Keyal further relied on the decision of Hon'ble Supreme Court passed in Union of India through NCB, Lucknow Vs. Md. Nawaz Khan [Criminal Appeal No. 1043/2021 (Arising out of SLP Crl. No. 1771/2021), decided on 22.09.2021], wherein the Hon'ble Apex Court had observed as under: "With regard to the grant of bail for offences under the NDPS Act, in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 this Court observed that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act. Further, in Union of India v. Prateek Shukla, (2021) 5 SCC 430, one of us (Justice DY Chandrachud), speaking for a two-judge Bench, noted that non-application of mind to the rival submissions and the seriousness of the allegations involving an offence under the NDPS Act by the High Court are grounds for cancellation of bail.

¶17Section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the NDPS Act. Section 37 reads as follows: "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(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. Page No.# 8/15

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. (emphasis supplied)

¶18Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are :

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(ii) There must exist 'reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.

¶19The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that : "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged."

¶12He further relied on another decision of Hon'ble Supreme Court passed in State of Inspector of Police Vs. B. Ramu [Criminal Appeal No. 1043/2021 (Arising out of SLP Crl. No. 8137/2022), decided on

12.02.2024], wherein also, it has been observed that in case of recovery of such a huge quantity of narcotic substance, the Court should be slow in granting even regular bail to the accused what to talk of anticipatory bail more so when the accused is alleged to be having criminal antecedents.

¶13Accordingly, it is submitted by Mr. Keyal, learned Standing Counsel, NCB, Page No.# 9/15 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 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.

¶14After 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.

¶15It is the case of the petitioner that the accused is in custody for more than 2 (two) years 1 (one) months and till date, the prosecution could examine only 3 (three) witnesses out of 8 (eight) 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.

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¶16On 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 and in that context, the learned Standing Counsel, NCB has already relied on the above referred judgments.

¶17It 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 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 8 (eight) 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 learned Special Judge was on leave and the case was also delayed. More so, the prosecution as well as the defence also prayed adjournment of this case. However, the petitioner denied of taking any adjournments.

¶18Further, it is also an admitted position that the case is of commercial quantity and hence, the rigor of Section 37 NDPS Act will follow.

¶19For ready reference, Section 37 NDPS Act is extracted hereinbelow: Page No.# 11/15

"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."

¶20Thus, 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.

¶21But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for more than 2 (two) years 1 (one) month from the date of his arrest and till then, the prosecution has been able to examine only 3 (three) witnesses out of 8 (eight) 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.

¶22In 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 Page No.# 12/15 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."

¶23In the case of Chitta Biswas @ Subash Vs. the State of West Bengal [Criminal Appeal No (s) 245 of 2020 (Decided on 07.02.2022)] 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.

¶24Again, 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.

¶25Further, 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.

¶26The 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. Page No.# 13/15

¶27In 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.

¶28Same view has been expressed by the Apex Court in the case of Anjan Nath (supra).

¶29In 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. More so, the learned Special Judge was directed to make an endeavour to dispose of the matter preferable within 6 (six) months, but it is seen that there is no such progress of the case and till date, the prosecution could examine only 3 (three) numbers of witnesses and the defence could cross-examine only 2 (two) witnesses of out 8 (eight) numbers of listed witnesses, though it a fact that the accused/petitioner is behind the bar for more than 2 (two) years 1 (one) month.

¶30So, 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 1 (one) month may be Page No.# 14/15 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.

¶31Accordingly, 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 accused/petitioner, namely, Shri Amit Kumar, 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 Page No.# 15/15 Additional Sessions Judge No. 5, Kamrup (M), Guwahati, without prior permission.

¶32In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant

PageoNo.#o1/15 GAHC010263712024 ooooooo 2024:GAU-AS:12768 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oBailoAppln./3805/2024o AMIToKUMARo S/OoSRIoBANARSIoYADAVo R/OoBHAWANIPUR,oWARDoNO.o1,oNEARoSHIVoMANDIR,o P.S.oRANGRA,oP.O.oBHAWANIPURoDISTRICTo-oBHAGALPURoPIN-853204,o BIHAR,o PRESENToADDRESS-o NEARoTHEoHOUSEoOFoATULoKUMARoMANDAL,oNEARoCHATIoDURGAoMATA MANDIR,o SAMELIoCHANDPURoROAD,o SAMELIo,oDIST.oKATIHAR,oBIHAR. VERSUSo UNIONoOFoINDIAo REPoBYoTHEoNCBoGUWAHATIoZONALoUNIT,oGUWAHATI. AdvocateoforotheoPetitionerooooo:oMR.oNoNoBoCHOUDHURY,oMS.oKoDEY,MR.oAoAoBARMANo AdvocateoforotheoRespondento:oSC,oNCB,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/15 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA