Suresh Ram v. Union of India

ORDER Date : 17.07.2024

¶1Heard Mr. G. Pathak, learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel for the NCB.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Suresh Ram, who has been detained behind the bars since 16.12.2020 (for more than 3 years 7 month) in connection with NDPS Case No. 28/2021 corresponding to NCB Crime No. Page No.# 2/9 18/2020 under Sections 8(c)/20(b)(ii) (c)/29 of the NDPS Act, 1985.

¶3The gist of accusation in this case is that the Intelligence Officer, NCB, Guwahati Zonal Unit had lodged a complaint before the Sessions Judge, Kamrup

(M), Guwahati, inter alia, alleging that on receipt of an information through reliable sources that huge quantity of ganja would be carried in a truck on

15.12.2020, a search was conducted at around 2045 hours, the team of Narcotic Control Bureau, at Kinara Red Bridge, NH-37, Basistha Chariali, had intercepted a truck bearing Registration No. AS 01 CC 7797 and apprehended the driver (the present petitioner), from the said truck. During search of the said truck, 589.010 kgs of ganja (cannabis) was seized from the said truck.

¶4On receipt of the said complaint, NDPS case No. 28/2021 was registered.

¶5The present petitioner was arrested on 16.12.2020 and charges under Sections 8(c)/20(b)(ii)(c)/29 of the NDPS Act, 1985 were framed against him on

24.08.2022 and out of 9 listed witnesses in the complaint petition, only 2 have been examined till date.

¶6Learned counsel for the petitioner has submitted that in spite of prolong incarceration of the present petitioner for more than 3 years 7 month the trial of NDPS Case No. 28/2021 has not yet fairly progressed.

¶7It is also submitted by learned counsel for the petitioner that there is no fault of the present petitioner in the delay caused in the progress of the present trial.

¶8Learned counsel for the petitioner has submitted that to continue to keep the present petitioner under detention for a long period on one hand and to delay the trial of the case on the other hand is clearly unfair and Page No.# 3/9 unreasonable and contrary to the spirit of Section 36 (1) of the NDPS Act, 1985, Section 309 of the Code of Criminal Procedure, 1973 and Article 14, 19 and 21 of the Constitution of India.

¶9Learned counsel for the petitioner has also submitted that by keeping the present petitioner detained behind the bars for a long period and if any delay in the trial is caused either due to the prosecution side or the court and where there is no fault of the present petitioner, it would certainly violate the fundamental rights guaranteed to the present petitioner under Article 21 of the Constitution of India and hence, he has submitted that the petitioner is entitled to get bail solely on the ground of prolonged incarceration as such a prolonged incarceration has violated the fundamental right to life and personal liberty guaranteed to him by Article 21 of the Constitution of India.

¶10To support his submissions, learned counsel for the petitioner has cited following rulings:- i. "Hussainara Khatoon & Ors Vs. Home Secretary, State of Bihar, reported in "(1980) 1 SCC 98 ii. Supreme Court Legal Aid Committee Representing Under Trial Prisoners Vs. Union of India & Others reported in 1994

(6) SCC 731, iii. Satender Kumar Antil Vs. Central Bureau of Investigation, reported in (2022) 10 SCC 51 iv. Mohd Muslim @ Hussain Vs. State (NCT of Delhi) reported in 2023 SCC Online SC 352 v. Rabi Prakash Vs. State of Orissa reported in 2023 SCC Online SC 1109. vi. Chitta Biswas @ Subhas Vs. The State of West Bengal Page No.# 4/9 (Order dated 07.02.2020) in Criminal Appeal No. 245/2020, vii. Nitesh Adhikari @ Bapan Vs. State of West Bengal (Order dated 01.08.2022 in SLP Criminal No. 5769/2022), viii. Shariful Islam @ Sarif Vs. State of West Bengal (order dated 04.08.2022 in SLP Criminal No. 4173/2022)

¶11On the other hand, Ms. Deka, learned counsel for the NCB has vehemently opposed the grant of bail to the petitioner and has submitted that the NCB has filed a written objection opposing the bail of the petitioner on the ground that the quantity of Ganja recovered from the possession of the petitioner is of commercial quantity and, therefore, embargo of Section 37 of the NDPS Act, 1985 is applicable to the instant case until that embargo is overcome, the petitioner may not be granted bail.

¶12The learned counsel for the NCB has also cited a r of Apex Court in the case of "Union of India -Vs- Ajay Kumar Singh @ Pappu", reported in "SLP (Crl.) No. 2351/2023" wherein the Apex Court has observed as follows:- "Para-14 " This part, it is noticed that the High Court, in passing the impugned order of bail, had lost sight of Section 37 of the NDPS Act, which, inter alia, provides that no person accused of an offense involving commercial quantity shall be released on bail unless the twin condition laid down therein are satisfied…." Para:- 15 " In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that he is not guilty of such an offence…."

¶13Learned counsel for the NCB has also cited ruling of the Apex Court in the case of "Narcotics Control Bureau v. Mohit Aggarwal" reported in "SLP(Crl.) Page No.# 5/9 No. 6128-29 of 2021 "(Appeal Nos. 1001-1002 of 2022)".

¶14Learned counsel for the NCB has also cited ruling of the Apex Court in the case of "State by the Inspector of Police Vs. B. Ramu" reported in "SLP(Crl.) No. 8137 of 2022" and in all the aforesaid cases, the prayer for bail of the petitioners were rejected by the Apex Court on the ground that the quantity of contraband in those cases were commercial and embargo of Section 37 would be applicable n the said cases.

¶15I have considered the submissions made by the learned counsel for the rival parties and have also perused the materials on record and I have also gone through the rulings cited by the learned counsel for both the parties.

¶16In the case of "Hussainara Khatoon" (supra) the Apex Court has observed that the procedure prescribed by law for depriving a person of his personal liberty cannot be regarded as reasonable, fair or just unless that procedure ensures a speedy trial for determination of guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21 of the Constitution of India.

¶17However, for whatsoever reasons, if delay has been caused and if it is not due to any fault of the petitioner, then to keep him under incarceration for long period on one hand, and to cause delay in culmination of the trial on the other hand would certainly be violative of his fundamental rights guaranteed under Article 21 of the Constitution of India.

¶18In this regard the observations made by the Apex Court in the case of "Satender Kumar Antil" (supra) are relevant and which is quoted here in below:- "49. Sub-section (1) mandates courts to continue the proceedings on a Page No.# 6/9 day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the non-compliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own."

¶19The Supreme Court of India in "Mohd Muslim @ Hussain Vs. State" (NCT of Delhi)" (supra) has observed that "Grant of bail on ground of undue delay in trial, cannot be said to be fettered by section 37 of the NDPS Act, 1985".

¶20Similarly, the Apex Court of India has also observed in "Rabi Prakash Vs. The State of Odisha" (supra) wherein, it observed that "prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section Page No.# 7/9 37(1)(b)(ii) of the NDPS Act, 1985."

¶21Moreover, as discussed here in above, though the provisions of section 37 of the NDPS Act, 1985 are very stringent in nature and same has to be interpreted keeping in the mind the object and purpose of the Act, however, it is also to be kept in mind that the NDPS Act, 1985 also mandates speedy and expeditious trial of offences under the said Act. If there is undue delay in the trial and the accused has been detained for long period, his fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India would outweigh the embargo of Section 37 of the NDPS Act, 1985.

¶22This Court is also of the considered opinion that while considering an application for bail involving commercial quantity of contraband, if the court comes to a finding that there has been undue delay in completion of the trial and that there has been prolonged incarceration of the petitioner during this time, he would be entitled to get bail in such case of prolonged incarceration as the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37 of the NDPS Act, 1985.

¶23It is also pertinent to mention herein that the Supreme Court of India had granted bail to the accused facing charges for possession of commercial quantity of contraband only on the ground of prolonged incarceration in "Shariful Islam @ Sarif Vs. State of West Bengal" (supra), wherein the accused was detained behind the bars for one year and six months.

¶24In "Nitesh Adhikari Vs. State of West Bengal" (supra), 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. Page No.# 8/9

¶25In the instant case also, the petitioner has been detained behind the bars for more than 3 years and 7 months and only two out of nine listed prosecution witnesses have been examined till date and during entire period of more than three years and seven months, the petitioner has been detained behind the bars, there is seems to be no fault on the petitioner which has caused delay to the trial which is pending against the petitioner.

¶26Under the facts and circumstances of this case, considering the prolonged incarceration of the petitioner as well as slow progress of the trial, this Court is of the considered opinion that the fundamental right to life and personal liberty of the petitioners guaranteed under Article 21 of the Constitution of India has outweighed the fetters imposed under Section 37 of the NDPS Act, 1985 and accordingly the petitioner is entitled to get bail in this case.

¶27In view of above, the above named petitioner is hereby directed to be released on bail on furnishing a bond of Rs. 50,000/- (Rupees Fifty Thousand) only with two suitable sureties, one of whom should be a government employee and should be resident of the State of Assam, of like amount to the satisfaction of the trial court with following conditions: - i. That the petitioner shall cooperate in the trial of NDPS Case No. 28/2021, which is pending in the Court of learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati; ii. That the petitioner shall regularly 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 Page No.# 9/9 such facts before the trial court in the trial pending against the present petitioners; 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 learned 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.

¶28With the above observations, this bail application is hereby disposed of.

JUDGE Comparing Assistant

Page No.# 1/9 GAHC010089562024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1336/2024 SURESH RAM S/O JAI RAM, R/O VILL- MATHURAPUR, P.S.-TURKAULIA, DIST-EAST CHAMPARAN, BIHAR, PIN-845429 VERSUS UNION OF INDIA REPRESENTED BY NCB Advocate for the Petitioner : MR G PATHAK Advocate for the Respondent : SC, NCB BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA