Yahiya Khan v. The Union of India

ORDER Date : 26.06.2024

¶1Heard Mr. S. Nawaz, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, Narcotic Control Bureau (NCB). Page No.# 2/11

¶2This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely Yahiya Khan, who has been detained behind the bars since 14.10.2020 (more than 3 years 8 months), in connection with NDPS Case No. 16/2021, arising out of NCB Crime No. 13/2020, under Section 22(C)/29 of the NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati.

¶3The case of the petitioner is that he has been detained in connection with NCB Crime No. 13/2020 on 14.10.2020, along with two other co-accused, namely Shakil Khan and Mithilesh Kumar, from near Rehman Hospital, 6 Mile, Guwahati, Assam, on acquisition of possessing 2.146 kg of methamphetamine tablet.

¶4Later on, on the basis of a complaint filed by one Manoj Sauguna, Intelligence Officer, Narcotic Control Bureau, the NDPS Case No. 16/2021, was registered and the trial was commenced.

¶5It is pertinent to mention herein that, out of 2.146 kg of methamphetamine tablets which were seized in this case, a total of 275 grams of methamphetamine in tablet form was recovered from the possession of co-accused Shakil Khan and a quantity of 839 grams of methamphetamine in tablet form was recovered from the co-accused Mithilesh Kumar, whereas the weight of the methamphetamine tablets which was recovered from the physical possession of the above-named petitioner, Md. Yahiya Khan, was 1.032 kg. Thus, even individually, the quantity of methamphetamine tablets which were recovered from the three accused persons was commercial quantity.

¶6Learned counsel for the petitioner has submitted that in the NDPS Case Page No.# 3/11 No.16/2020, which is pending before the Court of learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, wherein the above-named petitioner is facing trial, the charges were framed against the present petitioner and two other co-accused under Section 8(C)/22(C)/29 of the NDPS Act 1985 on

10.03.2022.

¶7Learned counsel for the petitioner has also submitted that though, total 12 numbers of witnesses have been listed in the complaint filed by the NCB, till now only 10 witnesses have been examined and the next date of the aforesaid case is fixed on 04.7.2024 for re-examination of PW-10 who has been recalled by the learned Trial Court on the prayer of NCB.

¶8Learned counsel for the petitioner has also submitted that the co-accused in this case, namely, Shakil Khan had earlier preferred a bail application before this Court, which was registered as Bail Application No.994/2023 and the said bail application was disposed of by order dated 02.05.2023 by a Coordinate Bench of this Court, wherein, though the prayer for bail of co-accused Shakil Khan was rejected, the Court made an observation that the Trial Court shall plan a calendar of hearing suitably so as to ensure early disposal of the case, preferably within six months, failing which the Trial Court shall consider the release of the said accused on bail subject to certain conditions.

¶9It is also submitted by learned counsel for the petitioner that when the Trial Court failed to culminate the trial as within six months of the date of the said order, the co-accused, Md. Shakil Khan, was granted bail by the Trial Court by its order dated 18.11.2023 with certain conditions.

¶10It is also submitted by learned counsel for the petitioner that even after Page No.# 4/11 seven months of the release of the co-accused on bail on the grounds of prolonged incarceration, the present petitioner, who is similarly situated to that of the accused who was already released on bail, is languishing behind the bars with uncertainty of early culmination of trial.

¶11It is also submitted by learned counsel for the petitioner that as the above-mentioned petitioner has been languishing behind the bars for the last more than three years, eight months, and the trial has not yet culminated, he is entitled to bail on the grounds of prolonged incarceration only.

¶12It is also submitted by learned counsel for the petitioner has that the principle of releasing the accused on bail even in cases involving commercial quantity of contraband mainly on the grounds of prolonged incarceration has been recognized by the Apex Court in the case of "Rabi Prakesh Vs. State of Orissa" reported in 2023 live law (SC) 533, wherein it has been observed by the Apex Court 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."

¶13Learned counsel for the petitioner has submitted that though the embargo of Section 37 of the NDPS Act, 1985 is mandatory in nature, however, in view of the observations made by the Supreme Court in a number of cases, in case of inordinate delay in trial, the embargo is lifted and it gives weigh to the fundamental right of the accused which is guaranteed under Article 21 of the Constitution of India.

¶14The learned counsel for the petitioner has also cited the rulings of the Page No.# 5/11 Apex Court in (i) "Shariful Islam @ Sarif Vs. State of West Bengal" (order dated

04.08.2022 in SLP Criminal No. 4173/2022), (ii) "Dheeraj Kumar Shukla Vs. State of Uttar Pradesh" [order dated 25.10.2023 passed in Special Leave to Appeal (Criminal) No. 6690/2022], (iii) "Anjan Nath V. The State Of Assam [Order dated

17.10.2023 passed in Special Leave to Appeal (Criminal) No. 9860/2023], (iv) "Nitesh Adhikari Vs. State of West Bengal" (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022) and (v) "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), wherein the petitioners (who were facing trial for possessing a commercial quantity of contraband) were granted bail by the Apex Court. However, due to the prolonged incarceration in all the above mentioned cases, the petitioners were allowed to go on bail. Therefore, on the same principle, the learned counsel for the petitioner has also submitted that in the instant case also the petitioner, who has been languishing behind the bars for more than 3 years 8 months may be allowed to go on bail.

¶15On the other hand, Mr. S. C. Keyal, learned Standing Counsel, NCB has vehemently opposed the grant of bail to the present petitioner on the grounds that there are sufficient incriminating material against the present petitioner for possessing a commercial quantity of methamphetamine tablets in this case, and hence the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant case, and therefore, he may not be allowed to go on bail.

¶16Learned Standing Counsel, NCB has also submitted that though the Apex Court has observed that the prolonged incarceration may be one of the grounds for releasing the accused on bail however it has not laid down in anywhere as to how long incarceration would be long enough to override the embargo of Page No.# 6/11 Section 37 of the NDPS Act, 1985.

¶17It is submitted by learned Standing Counsel, NCB that as now it is well accepted that the provision of Section 436A of the Code of Criminal Procedure, 1973 is also applicable in NDPS cases, hence, until the accused has completed half of the period of the maximum sentence prescribed for the offence for which the accused undergoing incarceration has been charged with, his period of detention may not be considered as long enough to override the embargo of Section 37 of the NDPS Act, 1985.

¶18The learned Standing Counsel, NCB relying on the judgment of the Supreme Court of India in the case of State by NCB, Bengluru vs Pallulabid Ahamad Arimutta and others reported in (2022) 2 Scale 14 had submitted that the petitioner would not get the benefit of the co-accused Shakil Khan having been released on bail as he does not stand on the same footing as that of the said accused, namely, Shakil Khan. As the quantity of contraband seized from the possession of the present petitioner is much higher than that of the co-accused Shakil Khan who has been released on bail.

¶19Learned Standing Counsel, NCB has also submitted that in a case involving heinous offences, the Constitutional Courts should refrain from fixing a time bound schedule for disposal of case and it may issue such direction for time bound disposal in the exception circumstances only and to buttress his submission he has cited a ruling of the Apex Court in the case of High Court Bar Association, Allahabad Vs. State of UP and other reported in 2024 SCC online SC

207.

¶20To impress upon this Court that on the ground of prolonged incarceration only the petitioner may not be granted bail in a case where Page No.# 7/11 commercial quantity of contraband is involved, learned Standing Counsel, NCB has also cited ruling of Coordinate Bench of this Court in the case of i. Aminul Islam Vs. Union of India (Order dated 06.05.2022 in Bail Application No. 2816/2020) ii. Khamin Lal Vs. State of Assam (Order dated 20.12.2023 in Bail Application No. 4379/2023) iii. Ravinder Ray Vs. Union of India (Order dated

10.06.2024 in Bail Application No. 1240/2024)

¶21I have considered the submissions made by learned counsel for both sides and have perused the materials on record, including the scanned copy of the case record of NDPS Case No. 16/2021, which was called for in connection with this case.

¶22It appears from the record that the petitioner was arrested on

14.10.2020, and as on date the petitioner has completed more than 3 years 8 months of detention behind the bars and the next date of the case before Trial Court is fixed for re-examination of PW-10 on 04.07.2024 and two more listed witnesses are there who are yet to be examined in this case.

¶23It also appears from record that one of the co-accused namely Shakil khan has already granted bail by the Trial Court about 7 month ago on the ground of prolonged incarceration though he was arrested on the same date as that of the present petitioner. In any view of the matter, the fact remains that even after more than three years and eight month the incarceration of the above named petitioner the trial has not yet culminated. Page No.# 8/11

¶24The Supreme Court of India in "Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" reported in 2023 SCC Online SC 352 has observed that "grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985".

¶25In case of "Rabi Prakesh Vs. State of Orissa" reported in 2023 live law

(SC) 533, it has been observed by the Apex Court 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."

¶26It appears on perusal of the rulings cited by learned counsel for the petitioner that in all the said cases, though commercial quantity of contraband was involved and apparently the embargo of Section 37 would have been applicable in those cases, however, only because of the fact of the prolonged incarceration of the petitioners, the Apex Court allowed the petitioners to go on bail.

¶27In light of the observation made by the Apex Court, this Court is of the considered opinion that under the facts and circumstances of a case, this Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioner is long enough, he would be entitled to get bail on the ground of such prolonged incarceration, as in such a case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioner under Section Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37 of the NDPS Act, 1985. Page No.# 9/11

¶28In "Nitesh Adhikari Vs. State of West Bengal" (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022), the Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months.

¶29In "Chitta Biswas Alias Subha Vs. The State Of West Bengal" (Order dated

07.02.2020 passed in SLP Criminal No. 8823/2019), the Apex Court granted bail to the petitioner, who was facing a trial for possessing a commercial quantity of contraband on the ground of prolonged incarceration of 1 year 6 month.

¶30In the instant case also, the present petitioner has been detained behind the bars for last more than 3 years 8 months and the trial is yet to culminate. In view of the facts and circumstances of this case as well as in the light of the observations made by the Apex Court in the rulings cited hereinabove, wherein, it has dealt with the question of long incarceration of similarly situated petitioners who were before the Apex Court, this Court is of the considered opinion that in the instant case also, the long incarceration of the present petitioner outweighs the embargo of Section 37 of the NDPS, Act 1985 and the petitioner is, therefore, entitled to get bail on the ground of prolonged incarceration only.

¶31In view of the above, the petitioner, namely, Mr Yahiya Khan is allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati with the following conditions: i. That the petitioner shall cooperate in the trial of Special Page No.# 10/11

(NDPS) Case No.16/2021, which is pending in the Court of learned Additional Sessions Judge No.2, Kamrup (M), Guwahati; ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, and mobile number as well as other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any similar offence while on bail.

¶32With the above observation, this bail application is accordingly disposed of. Page No.# 11/11

¶33Let a copy of this order be furnished by the Registry of this Court.

JUDGE Comparing Assistant

Page No.# 1/11 GAHC010010102024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./190/2024 YAHIYA KHAN S/O MAIPAK SHAH R/O VILL- KIYAMGEI P.O. LILONG P.S. IRILBUNG DIST. IMPHAL (EAST), MANIPUR PIN-795003 VERSUS THE UNION OF INDIA REPRESENTED BY SC, NCB Advocate for the Petitioner : MS. S K NARGIS Advocate for the Respondent : SC, NCB BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA