Md. Dilwar Khan @ Md. Dilbar Khan v. The State of Assam

ORDER Date : 09.04.2024

¶1Heard Mr. S. Munir, learned for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Md. Dilwar Page No.# 2/3 Khan @ Md. Dilbar Khan, who has been detained behind the bars since

25.06.2023, in connection with NDPS Case No. 201/2023, under Section 21(c)/29(1) of the NDPS Act, 1985 which is pending in the Court of the learned Additional District and Sessions Judge No.2, Kamrup(M), at Guwahati.

¶3The gist of accusation in this case is that on 25.06.2023, Mr. Vikram Basumatary had lodged the FIR before the Officer In-charge of S.T.F. Police Station, inter alia, alleging that 1kg and 280gm of heroin were recovered from the possession of the present petitioner.

¶4On receipt of the said FIR, S.T.F. P.S. Case No.04/2023, was registered and an investigation was initiated.

¶5Ultimately, on completion of the investigation, charge-sheet was laid on 04.12.2023 against 3 accused persons including the present petitioner under Section 21(c)/29(1) of the NDPS Act, 1985.

¶6It is also submitted by learned counsel for the petitioner that 2 other co-accused persons, against whom charge-sheet was laid were shown as absconders and till now the charges are not yet framed and, therefore, on the ground for delay, prayer for bail has been made.

¶7On the other hand, Mr. B. Sharma, learned Additional Public Prosecutor, has submitted that since this case involves commercial quantity of contraband, the embargo of Section 37 of the NDPS Act is applicable and hence, he has opposed the grant of bail to the present petitioner.

¶8I have considered the submissions made by the learned counsel for both the sides, as well as perused the materials available on record. Allthough, it appears that the petitioner has been detained behind the Page No.# 3/3 bars since 25.06.2023 and charges are yet to be framed. However, the fact remains that the contraband seized i.e., heroin is of commercial quantity and, therefore, embargo of section 37 of the NDPS Act, 1985 is applicable in this case.

¶9It is also a fact that prolonged incarceration may override the embargo to section 37 of the NDPS Act, 1985.

¶10However, in the instant case, since the petitioner has been detained behind the bars for less than 1year and considering the quantity of the contraband seized in this case the period of detention under-gone by the present petitioner, in the considered opinion of this court, is not long enough to override the embargo to Section 37 of the NDPS Act, 1985.

¶11Hence, the prayer for bail of the present petitioner is rejected.

¶12However, before parting, it is hereby directed that the trial court shall make all endeavors toprocure the attendance of the absconding co-accused and shall, alternately also look into the options of splitting up of the case of the present petitioner, so that the trial of the present petitioner, who has been incarcerated since 25.06.2023, may be completed at the earliest.

¶13With above observations, the bail application is disposed of.

JUDGE Comparing Assistant

Page No.# 1/3 GAHC010040922024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./591/2024 MD. DILWAR KHAN @ MD. DILBAR KHAN S/O LATE AZIZ KHAN R/O NO. 2, HARIPUR BOHORIHAT, P.S. TARABARI DIST. BARPETA, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. C K NATH Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA