Gautam Saha and Anr v. The State of Assam

ORDER

26.06.2024

¶1Heard Mr. D.K. Baidya, learned counsel for the petitioners. Also Page No.# 2/9 heard Ms. N. Das, learned Additional Public Prosecutor appearing for the State of Assam.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioners, namely, 1. Gautam Saha and 2. Bhajan Sarkar, who are detained behind the bars since

10.03.2022(for last 2 years 3 months and 16 days), in connection with Special (NDPS) Case No. 41/2022(arising out of Bazaricherra P.S. Case No. 47/2022 under Section 22(b)(ii)(c)/25/29 of the Indian Penal Code, 1985 pending before the Court of learned Special Judge, Karimganj.

¶3The gist of accusation in this case is that on 09.03.2022, one Niranjan Das, SI of Police had lodged an FIR before the Officer-In-Charge of Bazaricherra Police Station, inter alia, alleging that on receipt of an information through secret sources, a naka checking was conducted at naka check point of Churaibari Watchpost at National Highway No. 8.

¶4During naka checking at about 11:05 AM, a six wheeler LPG Carrier Truck bearing Registration No. TR01AG1940 which was coming from Tripura site was intercepted. During checking of the said Truck some packets of cannabis were recovered from the cabin of the said vehicle. The above-named petitioners were travelling in the said vehicle. On weighing the recovered ganja was found to be 228 kg in weight.

¶5On receipt of the said FIR, Bazaricherra P.S. Case No. 47/2022 was registered and investigation was initiated. After completion of the investigation, charge-sheet was laid against both the above-named petitioners. Page No.# 3/9

¶6Learned counsel for the petitioners has submitted that the above-named petitioners are detained behind the bars since the date of their arrest for last more than 2 years three months.

¶7It is also submitted by the learned counsel for the petitioners that charges were framed against the above-named petitioners on

04.02.2023. However, out of the 10 listed witnesses only three have been examined till date.

¶8It is also submitted by the learned counsel for the petitioners that the above-named petitioners are the driver and handyman of the said Truck and the Investigating Officer has not made the consigner or the consignee of the goods as an accused in this case.

¶9It is also submitted by the learned counsel for the petitioners that the petitioners were not aware of the goods which were loaded in the LPG carrier vehicle which they were driving and hence, they were not in conscious position of the recovered contraband.

¶10It is further submitted by the learned counsel for the petitioners that though the embargo of Section 37 of the NDPS Act is mandatory in nature, however, in view of observations made by the Apex Court in a number of cases in case of trial and prolonged incarceration, the embargo under section 37 of the NDPS Act is lifted in case of prolonged incarceration and it gives way to the right of the accused guaranteed under Article 21 of the Constitution of India.

¶11Learned counsel for the petitioner has cited a ruling of the Apex Court in "Rabi Prakesh Vs. State of Orissa" reported in 2023 live law Page No.# 4/9

(SC) 533, wherein it has been observed by the Hon'ble 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."

¶12The learned counsel for the petitioner has also cited the rulings of the 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 2 years 5 months and 28 days may be allowed to go on bail.

¶13On the other hand, learned Standing Counsel, NCB has vehemently opposed the grant of bail to the present petitioner on the Page No.# 5/9 grounds that there are sufficient incriminating material against the present petitioner for possessing a commercial quantity of ganja (360.350 kg) 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.

¶14On the other hand, Ms. N. Das, learned Additional Public Prosecutor has submitted that the quantity of ganja seized in this case is of huge quantity and is also of commercial quantity and therefore, the embargo of section 37 of the NDPS Act is applicable in this case. She has therefore vehemently opposed the grant of bail to the above-named petitioners.

¶15I have considered the submissions made by the learned counsel for both the sides as well as perused the materials available on record, including the scanned copy of the case record of Special (NDPS) Case No. 41/2022, which was called for in connection with this case.

¶16Hon'ble 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".

¶17The Hon'ble Apex Court in "Rabi Prakesh Vs. State of Orissa" reported in 2023 live law (SC) 533, wherein it has been observed by the Hon'ble 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 Page No.# 6/9 liberty must override the statutory embargo created under Section 37(1)

(b)(ii) of the NDPS Act."

¶18It appears on perusal of the rulings cited by learned counsel for the petitioner that in all the cases cited by the petitioner, 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.

¶19In view of the observation made by the Apex Court, this Court is of the considered opinion that if, 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 fetter imposed under Section 37 of the NDPS Act, 1985.

¶20It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an accused facing charges for possession of a commercial quantity of contraband only on the ground of prolonged incarceration in "Shariful Islam @ Sarif Vs. State of West Bengal" (Order dated 04.08.2022 passed in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months. Page No.# 7/9

¶21In "Nitesh Adhikari Vs. State of West Bengal" (Order dated

04.05.2022 passed in SLP Criminal No. 5769/2022), Hon'ble 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.

¶22Similarly in "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years.

¶23In "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.

¶24In the instant case also, as already discussed hereinabove, both the petitioners have been languishing behind the bars for more than last 2 years 3 months and out of 10 listed prosecution witnesses, only 3 witnesses have been examined till date and therefore, there is unlikelihood that the trial would culminate at the earliest.

¶25In view of peculiar facts and circumstances of this case, and in the light of the observations made by the Apex Court, in the rulings cited hereinabove, wherein, the Apex Court has dealt with the question of prolonged incarceration of similarly situated petitioners who were before the said Court, this Court is of the considered opinion that in the instant case also, the period for which the petitioners have been languishing Page No.# 8/9 behind the bars may be considered as prolonged incarceration which would outweighs the embargo of Section 37 of the NDPS, Act 1985. Hence, the petitioners, are entitled to get bail on the ground of prolonged incarceration.

¶26In view of the above, the above-named petitioners shall be allowed to go on bail of Rs. 50,000/- with two sureties of like amount (one of whom should be a resident within the State of Assam) subject to the satisfaction of the learned Special Judge, Karimgang with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 41/2022, which is pending in the Court of learned Special Judge, Karimganj; 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, and other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Page No.# 9/9 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.

¶27With the above observation, this bail application is accordingly disposed of.

JUDGE Comparing Assistant

Page No.# 1/9 GAHC010022792024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./343/2024 GAUTAM SAHA AND ANR. R/O VILL/P.O. KANCHANMALA P.S. AMTALI, DIST. WEST TRIPURA, TRIPURA. 2: BHAJAN SARKAR S/O LAXMI CHARAN SARKAR R/O DAKSHIN CHAMPAMURA RAJIB CLUB P.S. BISHALGARH DIST. SIPAJHAR ASSA VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. D K BAIDYA Advocate for the Respondent : BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA