Gopal Basumatary v. The State of Assam

ORDER Date : 26-06-2024

¶1Heard Mr. P. K. Saharia, learned counsel for the petitioner. Also heard Mr. B. Sarma, 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, Gopal Basumatary, who is Page No.# 2/7 detained behind the bars since 18.12.2022 (for more than last one year and six months) in connection with NDPS Case No. 74/2023, arising out to Hatigaon P.S. Case No. 573/2022 under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985, which is pending in the Court of learned Additional Sessions Judge (FTC) No. 3, Kamrup(M).

¶3The gist of accusation in this case is that on 18.12.2022, one Subrata Bhattacharjee, SI of Hatigaon Police Station had lodged an FIR before the Officer-in-Charge of Hatigaon Police Station, inter alia, alleging that on receipt of an information through reliable sources that two persons carrying illegal drugs were coming in a vehicle bearing Registration No. AS-01-R-0044 to Biharibosti, Tiniali, a naka checking was conducted at Biharibosti, Tiniali. On the same date at about 3.20 PM the aforesaid vehicle was intercepted and the occupants of the vehicle, namely, Maidi Daimari and Gopal Basumatary (present petitioner) were apprehended and eight numbers of white polythin packets containing 40.680 Kgs. of suspected cannabis were recovered from the said vehicle. On receipt of the said FIR, Hatigaon P.S. Case No. 573/2022 was registered and the investigation was initiated.

¶4Ultimately, on completion of the investigation, charge-sheet was laid and the present petitioner faced the trial remaining in custody.

¶5The learned counsel for the petitioner has submitted that though the petitioner has been languishing behind the bars for last more than one year and six months and though the charges were framed on 05.01.2024 however till date not even a single witness has been examined. The learned counsel for the petitioner has also submitted that last date when the case was fixed before the Trial Court was 12.06.2024 and on the said date also no witnesses could be Page No.# 3/7 examined as prosecution did not take step for summoning the witnesses.

¶6Learned counsel for the petitioner has submitted that though the embargo of Section 37 of the NDPS Act, 1985 is mandatory in nature, however, in view of the observations made by the Supreme Court in a number of cases, in case of inordinate delay in trial, the embargo is lifted and it gives way to the right of the accused under Article 21 of the Constitution of India.

¶7The learned counsel for the petitioner has also submitted that though in the present case commercial quantity of contraband is involved, however, as the detention of the present petitioner for more than one year and six months, under the facts and circumstances of the case may be regarded as a prolonged incarceration, his such detention would override the embargo of Section 37 of the NDPS Act.

¶8Learned counsel for the petitioner has cited a ruling of the Apex Court in "Rabi Prakesh Vs. State of Orissa" reported in 2023 live law (SC) 533, wherein it has been observed by the Apex Court that "The prolonged 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."

¶9The 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. Page No.# 4/7 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 and 6 months may be allowed to go on bail.

¶10On the other hand, learned Additional Public Prosecutor has submitted that since the quantity of contraband involved in the instant case is of commercial quantity, the embargo of Section 37 is applicable to this case and, hence, he has opposed the grant of bail to the above named petitioner.

¶11I have considered the submissions made by the learned counsel for both the sides and have perused the materials on record including the scanned copy of the case record of NDPS Case No. 74/2023 which was called for in connection with this case.

¶12It appears from record that in the instant case though the charges were framed against the present petitioner on 05.01.2024 and though 9 prosecution witnesses are listed in the charge-sheet, however, till date not even a single prosecution witness has been examined.

¶13The 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 Page No.# 5/7 Section 37 of the NDPS Act, 1985".

¶14The Apex Court in "Rabi Prakesh Vs. State of Orissa" (supra), wherein it has been observed by the Apex Court that "The prolonged 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."

¶15It 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 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.

¶16In 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 Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985.

¶17It is also pertinent to mention herein that the 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 Page No.# 6/7 behind bars for one year and six months.

¶18In "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.

¶19Similarly 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.

¶20In "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 months.

¶21In the instant case also from the facts and circumstances discussed hereinabove as well as in the light of the observations made by the Apex Court in the rulings cited hereinabove, this Court is of considered opinion that the long incarceration of 1 year 6 months without there being even a single witness examined outweighs the embargo of Section 37 of the NDPS Act, 1985 in this case and the petitioner is entitled to get bail on the ground of prolonged incarceration only.

¶22In view of the above, the above named petitioner is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like amount (one of whom should be resident of the State of Assam) subject to the satisfaction of the learned Additional Sessions Judge (FTC) No. 3, Kamrup(M) with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case Page No.# 7/7 No. 74/2023, which is pending in the Court of Additional Sessions Judge (FTC) No. 3, 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 their contact details including photocopies of their 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 Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioners shall 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.

¶23With the above observation, this bail application is accordingly disposed of.

JUDGE Comparing Assistant

Page No.# 1/7 GAHC010099712024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1439/2024 GOPAL BASUMATARY S/O LT. DILIP BASUMATARY R/O VILL- BALIJAN P.O. AND P.S. ORANG DIST. UDALGURI (BTAD) VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. P K SAHARIA Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA