Sahel Ahmed @ Sahel Akhmed @ Moni and Anr v. The State of Assam

ORDER

17.05.2023 Heard Mr. A. Ahmed, learned counsel appearing for the accused petitioners Page No.# 2/5 as well as Mr. D.P. Goswami, learned Addl. P.P., Assam appearing for the State respondent. By this petition under Section 439 Cr.P.C., the accused-petitioners, namely 1) Sahel Ahmed @Sahel Akhmed @Moni and 2) Dulal Ahmed have prayed for grant of bail in connection with Special (NDPS) Case No. 17/2019 pending in the Court of learned Special Judge, Karimganj arising out of Bazarichera P.S. Case No. 114/2019 under Sections 21(C)/29 of the NDPS Act, 1985. The scanned copy of case record, as called for, is placed before the Court. Mr. A. Ahmed, learned counsel appearing for the accused petitioner, submits that the accused has been in custody for 3 years 9 months without any progress in trial of the case since charges were framed on 03.01.2020 although there is a list of 7 prosecution witnesses in the charge-sheet. Mr. Ahmed submits that although there is a bar created by Section 37 of the N.D.P.S. Act, that by itself cannot abridge the right created by Article 21 of the Constitution of India. Opposing the bail application, Mr. D.P. Goswami, learned Addl. Public Prosecutor, submits that the learned trial Court has framed charges under Sections 22(C)/29 of the N.D.P.S. Act against the accused petitioners for having possessed commercial quantity of Methamphetamine tablets on 03.01.2020. Mr. Goswami further submits that as the case is presently pending at evidence stage in view of the bar under Section 37 of the N.D.P.S. Act, the accused may not be released on bail. The case relates to recovery and seizure of 16,000 Yaba tablets weighing

1.591 kg (commercial quantity) containing Methamphetamine from the possession of the present petitioners who were travelling in a bus bearing Page No.# 3/5 registration No.AS-24-C-6025. It is noticed that the accused has been in custody since 03.08.2019, that is, for 3 years 9 months 15 days. A perusal of the case record reveals that the charge-sheet was laid under Sections 21(C)/29 of the N.D.P.S. Act against the accused petitioners vide order, dated 31.10.2019 and thereafter, the charges u/s 22(C)/29 were framed on

03.01.2020. Thereafter, however, not a single witness is examined by the prosecution. There is a list of 7 (seven) witnesses in the charge-sheet. In paragraph Nos. 22 and 23 of the judgment rendered in Mohd Muslim @Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s) 915/2023, the Hon'ble Supreme Court observed has herein below extracted:- "22. 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. State21 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."

¶23There 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"22[ Working Papers-Group on Prisons & Borstals -1966 U.K.](also see Donald Clemmer's 'The Prison Community published in 1940 [Donald Clemmer, the Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, ' Donald Clemmer's Concept of Prisonisation', available at https://www.tkp.Edu.pl/wpcontent/uploads/ 2020/12/Sobecki_sklad.pdf(accessed on 23rd March, 2023)]). 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 Page No.# 4/5 speedily. " As submitted rightly by Mr. Ahmed, learned counsel for the accused petitioners, although there is a bar created by Section 37 of the N.D.P.S. Act, that by itself cannot abridge the right created by Article 21 of the Constitution of India. The accused petitioners are residents of Karimganj District under Patherkandi and Nilambazar P.S. respectively. Therefore, it is provided that each of the accused petitioners, named above, shall be released on bail of Rs. 1,00,000/-(Rupees One Lakh) only with two sureties of like amount to the satisfaction of the learned Special Judge (N.D.P.S. Act), Karimganj subject to the following conditions-

i) That the accused/petitioners shall continue to appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of;

ii) That the accused/petitioners 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;

iii) That the accused/petitioners shall refrain from committing any offences similar to the one of which they are accused of commission; and

iv) That out of the two bailors, one must be a government servant subject to verification of the relevant documents, if deemed necessary and after such verification, the learned Court below shall return the original documents retaining legible scanned copy thereof on record for future reference. Page No.# 5/5 Breach of any of the above conditions shall render cancellation of the bail in accordance with law. This disposes of the bail application. JUDGE Comparing Assistant

Page No.# 1/5 GAHC010049602023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./877/2023 SAHEL AHMED @ SAHEL AKHMED @ MONI AND ANR S/O LT. NEZAM UDDIN VILL- NAYADHAR, WARD NO. 4, P.O. AND P.S. PATHERKANDI DIST. KARIMGANJ, ASSAM 2: DULAL AHMED S/O LATE SIDDEK ALI ( S/O HUSON ALI SHOWN IN THE FIR) VILL- RATANPUR WARD NO. 3 P.O. AND P.S. NILAMBAZAR DIST. KARIMGAN VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR