Md. Saidul Ansari @ Sadul Ansari v. The State of Assam

ORDER Date : 16.08.2024

¶1Heard Mr. S. Munir, learned counsel for the petitioner. Also heard Mr. K. Baishaya, learned Additional Public Prosecutor for the State respondent.

¶2This application under Section 439 of the Code of Criminal Procedure, Page No.# 2/8 1973 has been filed by the petitioner, namely, Md. Saidul Ansari @ Sadul Ansari, who has been detained behind the bars since 11.01.2023 (for last 1 year 7 months and 23 days) in connection with NDPS Case No. 62/2023 under Sections 20(b)(ii)(C) of the NDPS Act, 1985, pending before the Court of the learned Special Judge, Kamrup (M).

¶3The gist of the accusation in this case is that the petitioner is facing a trial under Sections 20(b)(ii)(C) of the NDPS Act, 1985, on accusation of possessing 20kg, 400 grams of ganja.

¶4The petitioner was arrested on 11.01.2023, and since the date of his arrest, he is detained behind the bars. In this case, the charge sheet was laid against the petitioner, under Sections 20(b)(ii)(C) of the NDPS Act, 1985, on

28.02.2023, and thereafter, charge was framed against the petitioner on

07.07.2023.

¶5However, learned counsel for the petitioner submits that, even after prolonged incarceration of more than 1 year 7 months, the prosecution side has examined only 1 out of the 8 listed witnesses, and there is unlikelihood of culmination of the trial very soon.

¶6It is also submitted by learned counsel for the petitioner that, on an earlier occasion also, the petitioner approached this Court by filing a Bail Application No. 4028/2023, which was disposed of by this Court by order dated

11.12.2023, wherein the prayer for bail was rejected, however, while rejecting the prayer for bail on that occasion, this Court made an observation that the Trial Court was requested to take necessary steps for expeditious disposal of Page No.# 3/8 the case pending against the petitioner.

¶7However, it is submitted by learned counsel for the petitioner that, even after lapse of more than 8 months of the said order, only 1 witness has been examined.

¶8Learned counsel for the petitioner has submitted that the last date of the case was fixed on 06.08.2004, and on that day also the prosecution side had failed to produce any witness.

¶9Learned counsel for the petitioner has also submitted that though, because of the accusation of possessing commercial quantity of contraband, apparently embargo of Section 37 of the NDPS Act, 1985 appears to be applicable in this case, however, he submits that, in view of several observations made by the Apex Court of India in a number of cases, in case of inordinate delay in trial in such cases, the embargo of Section 37 of the NDPS Act, 1985 is lifted and it gives way to the right of the accused under Article 21 of the Constitution of India.

¶10Learned counsel for the petitioner submits that in the instant case also, the right of the above named petitioner, guaranteed under Article 21 of the Constitution of India, overrides the embargo of Section 37 of the NDPS Act, 1985.

¶11Learned counsel for the petitioner has cited a ruling of the Apex Court in "Rabi Prakash 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 Page No.# 4/8 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 1 year 7 months and 23 days may be allowed to go on bail.

¶13On the other hand, learned Additional Public Prosecutor has opposed the grant of bail to the present petitioner on the grounds that there are sufficient incriminating material against the present petitioner for possessing a commercial quantity of ganja (20kg, 400 grams) in this case, and hence, the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant case, Page No.# 5/8 and therefore, he may not be allowed to go on bail.

¶14I have considered the submissions made by learned counsel for both sides and have perused the materials on record, including the scanned copy of the case record of NDPS Case No. 62/2023.

¶15Hon'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".

¶16It 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 of the NDPS Act, 1985 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.

¶17In 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.

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¶18It 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" (Supra), wherein the accused was detained behind bars for one year and six months.

¶19In "Nitesh Adhikari Vs. State of West Bengal" (Supra), 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.

¶20Similarly in "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Supra), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years.

¶21In "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.

¶22In the instant case also, the present petitioner has been languishing behind the bars for last 1 year 7 months and 23 days and in spite of an observations made by this Court in Bail Application No. 4028/2023 on

11.12.2023 for expeditious trial of the case, however, till date only 1 out of 8 listed witnesses prosecution witnesses has been examined.

¶23Hence, in view of the facts and circumstances of this case as well as in view of the observations made by the Apex Court in the ruling cited Page No.# 7/8 hereinabove, this Court is of the considered opinion that due to prolong incarceration of the present petitioner as well as slow progress of the trial pending against him, the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India outweighs the embargo of Section 37 of the NDPS Act, 1985, in this case. Therefore, the petitioner, namely, Md. Saidul Ansari @ Sadul Ansari is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like amount subject to the satisfaction of the learned Special Judge, Kamrup (M) with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 62/2023, which is pending in the Court of learned Special Judge, Kamrup (M); 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/Driving License/PAN Card as well as mobile number, and other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall Page No.# 8/8 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.

¶24With the above observation, this bail application is accordingly disposed of.

JUDGE Comparing Assistant

Page No.# 1/8 GAHC010089652024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1306/2024 MD. SAIDUL ANSARI @ SADUL ANSARI S/O MD. AIM SHEKH R/O TINPAHAR P.S. TINPAHAR DIST. SAHABGANJ (JHARKHAND) VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. S MUNIR, MR. D ZAKARIA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA