Kamal Ali and Anr v. The State of Assam

ORDER Date : 10.04.2023

Heard Mr. HRA Choudhury, learned Senior Counsel for the accused petitioners as well as Mr. B Sharma, learned Additional Public Prosecutor, Assam for the State respondent. By this petition under Section 439 Cr.P.C., the accused-petitioners, namely, 1. Kamal Ali and

¶2Saiful Islam have prayed for grant of bail in connection with Special (NDPS) Case No. 26/2021 arising out of Chapar P.S. Case No.323/2021 ( GR No.1044/2021) under Sections 22 ( C)/29 of the NDPS Act. Mr. HRA Choudhury, learned Senior Counsel for the accused petitioners, submits that the accused petitioner No. 1 is in judicial custody for 642 days and accused petitioner No. 2 644 days and out of 6 prosecution witnesses only 04 are examined till date. Mr. Choudhury further submits that one co-accused namely, Ibrahim Ali has already been enlarged on bail by a co-ordinate bench. Mr. Choudhury, therefore, submits that the accused petitioners may be directed to be released on bail. In this regard, Mr. Choudhury , learned Senior Counsel has relied on the principles adopted by the Hon'ble Supreme Court in the case of Nitish Adhikary @ Bapan –vs-The State of West Bengal in Special Leave to Appeal (Crl.) No(s). 5769/2022 and in Amit Singh Moni –vs-State of Himachal Pradesh in Criminal Appeal No.668/2020 arising out of SLP (Criminal) No. 3813/2020 Per contra, Mr. B Sharma, learned Additional Public Prosecutor, submits that the accused petitioners are facing trial for commission of the alleged offences under Sections 22 ( C)/29 of the NDPS Act for illegally possessing 7921 bottles of codeine phosphate based cough syrup and the FSL report tested positive and further, only 2 prosecution witnesses are remained to be examined. As such, Mr. Sharma submits that the bail application may not be considered favourably. The case relates to recovery and seizure of 7920 numbers of New Phensedyl cough syrup bottle (100 ml. each bottle) containing Codeine phosphate from the possession of the present Page No.# 3/4 accused petitioners and one Ibrahim Ali. It is noticed that the accused petitioner No. 1 is in judicial custody for 642 days since

08.07.2021 and accused petitioner No. 2 for 644 days since 06.07.2021. A perusal of the case record reveals that charges under Sections 22 (C)/29 of the NDPS Act were framed against the accused petitioners vide order, dated 05.01.2022. Thereafter, four prosecution witnesses out of listed six witnesses are examined till 10.10.2022 and fixed for evidence of the investigating officer. It is also revealed that one co-accused namely, Ibrahim Ali was released on bail by a co-ordinate bench vide order, dated 09.01.2023 passed in Bail Application 3371/2021. Therefore, despite the reasonable restrictions provided in Section 37 of the NDPS Act but in view of the prolonged period of detention and as the trial of the case has substantially progressed and further, the principle followed in the orders referred to above, this Court is of the opinion that further continuation of detention of the accused petitioners may not be necessary for the purpose of remaining part of trial. Accordingly, it is provided that each of the accused petitioners, who are resident under Jogighopa PS shall be released on furnishing bail of Rs. 1, 00,000/- ( One Lakh) only with one surety of like amount to the satisfaction of the learned Special Judge (NDPS Act), Bilasipara 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 of the remaining prosecution witnesses; and

iii) That the accused petitioners shall refrain from committing any similar offences in future, of which they are accused of commission. Be it mentioned that any observation made in this bail order shall have no bearing in the judicial discretion of the learned court below. This order will not be treated as precedent for other cases. Page No.# 4/4 This disposes of the bail application. JUDGE Comparing Assistant

Page No.# 1/4 GAHC010060232023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1058/2023 KAMAL ALI AND ANR S/O JAHAR ALI VILL- JHAWKURA PT.I P.S. JOGIGHOPA P.O. MAJERALGA DIST. BONGAIGAON, ASSAM PIN-783388 2: SAIFUL ISLAM S/O HAFIZUR RAHMAN VILL- JHAWKURA PT.II P.S. JOGIGHOPA P.O. MAJERALGA DIST. BONGAIGAON ASSAM PIN-78338 VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR