Bijaya Kumar Sahoo v. Union of India

ORDER Date : 27-06-2024

¶1Heard Mr. P. K. Saharia, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, NCB.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973, has been filed by the petitioner, namely, Bijaya Kumar Sahoo, who is Page No.# 2/11 detained behind the bars since 10.04.2022 (for more than 2 years and 2 months) in connection with NDPS Case No. 219/2022 arising out of NCB Crime No. 10/2022 under Sections 21(C)/29 of the NDPS Act, 1985 pending in the Court of learned Additional Sessions Judge No. 1, Kamrup(M).

¶3The gist of accusation in this case is that one Shri Manoj Sauguna, Intelligence Officer, NCB Guwahati had lodged a complaint before the Special Judge, Kamrup(M), Guwahati, inter alia, alleging that on 08.04.2022 at about 1730 Hrs. Shri C.S.K. Singh, Intelligence Officer, NCB received an information through reliable sources that two persons were coming to Guwahati in a train carrying huge quantity of contraband (heroin) in their baggage. Accordingly, on 10.04.2022, a search team of NCB was constituted and it came to Guwahati Railway Station at 0500 Hrs., and conducted a search in the Vivek SF Express which arrived at Platform No. 3 of the Guwahati Railway Station. During search operation, one Abid Parvez and the present petitioner were found sitting at seat No. 9 of the said coach and on search of their baggage, two separate packets containing suspected heroin weighing about 1.045 kg was found from their possession. On receipt of the said complaint, NDPS Case No. 219/2022 was registered. The charges were framed against the three numbers of accused persons including the present petitioner on 13.07.2022 under Section 21(C)/29 of the NDPS Act, 1985.

¶4The learned counsel for the petitioner has submitted that even after prolonged incarceration of more than 2 years and 2 months the trial has not progressed fairly and only 4 out of 8 listed prosecution witnesses have been examined till date. It is also submitted by the learned counsel for the petitioner that in the meanwhile one of the co-accused, namely, Abid Parvez @ Page No.# 3/11 Azad Pervez has already been granted bail by this Court in Bail Application No. 4307/2023 by order dated 20.04.2024.

¶5The learned counsel for the petitioner has submitted that since the date of his arrest, the above named petitioner has been detained behind the bars, however, trial has not fairly progressed because of no fault of his, and under such circumstances, it is submitted that the Fundamental Rights of the petitioner guaranteed under Article 21 of the Constitution of India would override the embargo of Section 37 of the NDPS Act, 1985.

¶6The learned counsel for the petitioners has cited a ruling of the Apex Court in the case of "Rabi Prakash Vs. State of Orissa" reported in 2023 SCC Online SC 1109, 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."

¶7The learned counsel for the petitioners 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 commercial quantity of Page No.# 4/11 contraband). 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 2 years and 2 months, may be allowed to go on bail.

¶8The learned counsel for the petitioner has also submitted that the present petitioner is similarly situated to that of the co-accused Abid Parvez who has already been granted bail by this Court and, therefore, on the ground of parity also he is entitled to get bail in this case

¶9on the other hand, learned Standing Counsel, NCB has vehemently opposed the prayer for grant of bail to the present petitioner on the ground that there are sufficient materials which incriminates the present petitioner for possessing commercial quantity of contraband and, hence, the embargo of Section 37 of the NDPS Act, 1985 is applicable in the instant case and, therefore, he has vehemently opposed the grant of bail to the above named petitioner.

¶10The learned Standing Counsel, NCB has also submitted that what is binding is not the conclusion arrived at by the higher Court, but the underlying principles, on the basis of which that conclusion has been reached. He has submitted that the rulings of the Apex Court cited by the learned counsel for the petitioner does not indicate any ratio-decidendi on the basis of which the petitioners in the said cases were allowed to go on bail.

¶11The learned Standing Counsel, NCB has also submitted that in case of an heinous offence like that of offences under the NDPS Act, 1985, the object of Page No.# 5/11 enacting NDPS Act, 1985 as well as legislative mandate of the said Act should be strictly followed and no accused should be released on bail unless mandatory conditions provided under Section 37 of the NDPS Act, 1985 are fulfilled. To substantiate his submission, the learned Standing Counsel, NCB has cited a ruling of the Supreme Court of India in the case of "Union of India Vs. Ram Samujh", reported in (1999) 9 SCC 429. The learned Standing Counsel, NCB has also cited a ruling of the Apex Court in the case of "State By (NCB) Bangaluru Vs. Pallulabid Ahmed Arimutta" reported in (2022) 12 SCC 633.

¶12The learned Standing Counsel, NCB has also submitted that in a criminal trial it is not possible to lay down a fixed period for conclusion of trial as the conclusion of criminal trial depends on many factors like nature of offence, the number of accused, the number of witnesses, the workload in the particular court, the means of communication and several other circumstances which are to be kept in mind and if the delay is not for any wrong on the prosecution side the accused should not get benefit of any such systemic delay. The learned Standing Counsel, NCB has cited a ruling of the Apex Court in the case of "High Court Bar Association, Allahabad Vs. The State Of Uttar Pradesh" reported in 2024 Legal Eagle (SC) 198, to buttress his submission.

¶13The learned Standing Counsel, NCB has also submitted that in the case of "Satender Kumar Antil Vs. CBI" reported in 2022 (10) SCC 51, the Apex Court has observed that Section 436 A of the Code of Criminal Procedure, 1973, which relates to the maximum period for which an under trial prisoner can be detained behind the bars, is also applicable to offences under NDPS Act, 1985. It is submitted by the learned Standing Counsel, NCB that as Section 436 A of the Code of Criminal Procedure, 1973, provides that if an under trial prisoner had Page No.# 6/11 undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law he shall be released by the Court on his personal bond with or without surety, hence, for an offence under NDPS Act, 1985 an under trial prisoner may be detained behind the bars till he completes one half of the maximum period of imprisonment specified for that offence. It is submitted by the learned Standing Counsel, NCB that unless the under trial prisoner completes the said period, he may not be released on bail merely on the ground of prolonged incarceration as embargo of Section 37 of the NDPS Act, 1985 would be applicable in such case.

¶14I have considered the submissions made by the learned counsel for both the sides and have produced the materials on record including a scanned copy of the case record of NDPS Case No. 219/2022 which was called for in connection with this case

¶15In the case of "Hussainara Khatoon & Ors. –Vs-Home Secretary, State of Bihar" reported in "(1980) 1 SCC 98" 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.

¶16Though, Section 37 of the NDPS Act, 1985 provides for stringent provision for grant of bail, however, Section 36 (1) of the NDPS Act, 1985 also mandates the Government to constitute as many special courts as necessary for the purpose of providing speedy trial of offences under the NDPS Act, 1985. If speedy trial is not provided to an incarcerated accused, it will certainly have a negative impact on the rigours of Section 37 of the NDPS Act, 1985. Page No.# 7/11

¶17The 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".

¶18The Apex Court in "Rabi Prakash 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."

¶19In light of the aforementioned observations of the Apex Court, the submissions made by the learned Standing Counsel, NCB to the effect that as only because Section 436 A of the Code of Criminal Procedure, 1973 is applicable to offence under the NDPS Act, 1985, therefore, the accused may not be released on bail unless he has completed one half of the maximum period of imprisonment specified for that offence, does not appears to be a reasonable argument.

¶20In the instant case, it appears that the petitioner has been detained behind the bars since the date of his arrest i.e., on 10.04.2022 and he has been languishing behind the bars for more than two years and two months, however, till today only four out of eight listed prosecution witnesses have been examined and the trial has not yet culminated.

¶21This Court is of the considered opinion that for whatsoever reasons, if inordinate delay has been caused and if it is not due to any fault of the petitioners, then to keep him under incarceration for a long period on one hand, and to continue to cause delay in culmination of the trial on the other hand Page No.# 8/11 would certainly be infringing his fundamental rights guaranteed under Article 21 of the Constitution of India and under such circumstances, the petitioners would be entitled to get bail.

¶22In this regard the observations made by the Apex Court in the case of "Satender Kumar Antil –Vs-CBI reported in "2022 (10) SCC 51" are relevant, same is quoted here in below: "49. Sub-section (1) mandates courts to continue the proceedings on a 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 noncompliance 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."

¶23In 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 Page No.# 9/11 Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioners are long enough, they 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.

¶24It 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 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.

¶25In "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.

¶26Similarly 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.

¶27In "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.

¶28It appears on perusal of the rulings cited by learned counsel for the petitioners that in all the cases cited by the petitioners, 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 Page No.# 10/11 Court allowed the petitioners to go on bail.

¶29In the instant case also, the above named petitioner has been detained behind the bars for more than two years and two months and trial is yet to culminate.

¶30Under the facts and circumstances of this case and in light of the observations made by the Apex Court in the ruling cited herein above, this Court is of the considered opinion that in the instant case also the facts and circumstances of this case are such that the period of detention undergone by the present above named petitioner may be considered as long enough to outweigh the embargo of Section 37 of the NDPS Act, 1985 and, therefore, the above named petitioner is entitled to get bail on the ground of prolonged incarceration.

¶31In view of the above, the above petitioner is allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Additional Sessions Judge No. 1, Kamrup(M), Guwahati with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 219/2022, which is pending in the Court of learned Additional Sessions Judge No. 1, 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; Page No.# 11/11 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 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; and vi. That the petitioner shall not commit any similar offence while on bail.

¶32With the above observation, this bail application is accordingly, disposed of.

JUDGE Comparing Assistant

Page No.# 1/11 GAHC010117162024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1702/2024 BIJAYA KUMAR SAHOO S/O- LATE MANGULI SAHOO R/O GOPALPUR PATANA, WARD NO. 9, NAC, P.O. AND P.S. BHUBAN DIST. DHENKANAL ODISHA-759017 VERSUS UNION OF INDIA NARCOTICS CONTROL BUREAU REPRESENTED BY THE STANDING COUNSEL, NARCOTICS CONTROL BUREAU Advocate for the Petitioner : MR. P K SAHARIA Advocate for the Respondent : SC, NCB BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA