Shamim Ahmed v. The State of Assam

ORDER

28.10.2024

Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent.

¶2This application is filed under Section 439 of the Code of Criminal Procedure, 1973, praying for grant of bail to the accused/petitioner, who has been languishing in jail hazot since 06.10.2023 in connection with Badarpur P.S Case No 154/2022 under Sections 22(c)/25/29 of the NDPS Act, 1985.

¶3The scanned copy of the LCR along with the present Status Report has already been received, and I have perused the same.

¶4Mr. Choudhury, learned counsel for the petitioner, has submitted that the petitioner is innocent and in no way involved in the alleged offence. According to the allegations, the occurrence took place on 10.07.2022, and the FIR was lodged on

11.07.2022, wherein contraband was allegedly recovered from three vehicles, and the drivers of those vehicles fled away. The vehicle of the present petitioner is a dumper truck, which was purchased by his brother in the petitioner's name, although he is shown as the owner of the vehicle. The other two vehicles, a truck and a JCB, were returned to their respective owners, and the petitioner was granted zimma of the seized dumper truck by the learned Trial Court.

¶5He further submitted that the petitioner was not shown to be involved in the case or the charge sheet; however, he was arrested in connection with this case after 1 year and 2 months of the occurrence, from his residence, without any evidence against him. The Investigating Officer filed the charge-sheet and arrested him after more than a year following the incident. He was arrested on 06.10.2023, and since Page No.# 3/8 then, he is behind the custody for over a year.

¶6Mr. Choudhury further submitted that the driver of the vehicle, Suel Ahmed Talukdar, is still absconding, and his attendance could not be procured by the Court to date, preventing the trial from proceeding or any prosecution witnesses from being examined, despite the fact that the petitioner has been in custody for over a year. He submits that since the accused Suel Ahmed Talukdar remains absconding, and the next date for production is fixed on 06.01.2025, there is no probability of initiation of trial before the arrest of this co-accused, who is shown as absconder in the charge sheet.

¶7In support of his submission, the learned counsel for the petitioner relies on the following decision passed by the Hon'ble Supreme Court, wherein, the period of incarceration was taken into consideration. i. Rabi Prakash vs. the State of Odisha reported in 2023 Live Law (SC) 533; ii. Bijon SK @ Golam Murselim vs. The State of West Bengal [SLP (Crl) No.6046/2024 dated 08.07.2024]; iii. Jahid Hasan Munna vs. The State of West Bengal [ SLP(Crl) No.3643/2024 dated 17.05.2024; iv. Haran Sekh @ SK vs. The State of West Bengal [SLP (Crl) No.6311/2024 dated 09.05.2024; v. Shariful Islam @ Sharif vs. The State of West Bengal [SLP(Crl) No.4173/2022 dated 04.08.2022; and vi. Aftar Hussain vs. The State of Assam [Bail Appln. No.3945/2023 dated

18.12.2023]. Page No.# 4/8

¶8In ithe case of Rabi Prakash (Supra), it has been held 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".

¶9Thus, considering the aforementioned cases, the period of prolonged incarceration, and the views expressed by the Hon'ble Supreme Court, he prays for the release of bail for the accused/petitioner. He also submits that the petitioner, being a permanent resident of the addressed locality, there is no chance of absconding, rather, he will appear before the learned Trial Court on each and every date fixed, if he is granted the bail.

¶10On the other hand, Mr. Sarma, the learned Additional Public Prosecutor, has submitted that this case involves a commercial quantity of contraband against the accused/petitioner, which was allegedly recovered from his possession. He further submits that, based on the prima facie evidence, the charge-sheet was filed against the accused/petitioner along with other co-accused person. As the case is of commercial quantity, the rigor of Section 37 will apply, and therefore, considering the nature of the allegations, he raises objections to the bail request of the present accused/petitioner.

¶11Section 37 of the NDPS Act read as follows:

"37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) No person accused of an offence punishable for [offences under Section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless Page No.# 5/8

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

¶12He further submitted that the delay in the case was caused by the non-appearance of the co-accused, who is shown as absconding in the charge-sheet. He further submitted that if the accused is allowed to go on bail only considering the length of detention or period of incarceration, the probability of absconding of the accused cannot be denied and in which event, there will be delay in disposal of the case.

¶13Accordingly, Mr. Sarma, the learned Additional Public Prosecutor, submitted that the accused/petitioner is not entitled to bail solely based on the period of incarceration and raised objections to granting bail to the accused/petitioner.

¶14After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the LCR as well as the status report and the relevant documents annexed with the petition. It is a fact that the accused/petitioner has been in custody for more than 1 (one) year. It is seen that one co-accused/driver is still absconding and, the learned Trial Court has been unable to procure his attendance, and as a result, the case is still pending at the stage of appearance. Consequently, none of the prosecution witnesses have been examined by the Trial Court.

¶15In case of Rabi Prakash (Supra), the Hon'ble Supreme Court has held as under: Page No.# 6/8 "4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd conditions re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. 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."

¶16Accordingly, the Hon'ble Apex Court held that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution. Similar view has been expressed by the Hon'ble Apex Court in case of Sariful Islam @ Sarif Vs. The State of West Bengal, dated

04.08.2022, wherein also, considering the length of detention and also considering the aspect that there is no likelihood of completion of trial in near future, the bail was granted to the petitioner.

¶17The same view is also expressed in another recent judgment of Division Bench of Hon'ble Apex Court in Mohd Muslim @ Hussain Vs. State (NCT of Delhi), reported in 2023 LiveLaw (SC) 260, wherein, in paragraph No. 23 of the said judgment, it has been held as under: "23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal" (also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects – where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily." Page No.# 7/8

¶18In the instant case, it is seen that the matter remains at the stage of the co-accused's appearance, who is still absconding. Consequently, proceedings against the other accused cannot continue, even though the charge sheet has already been filed against the accused/petitioner. In this situation, it is unlikely that the case will be resolved in the near future, while the accused/petitioner has been incarcerated for over a year.

¶19So, considering all these aspects of the case and the view of the Apex Court passed in recent cases, without going into the merit of the case, I find it a fit case to allow the accused/petitioner to go on bail.

¶20Accordingly, it is provided that on furnishing a bond of Rs. 100,000/- (Rupees one lakh) only with two sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned District & Sessions Judge, Karimganj, the accused/petitioner, namely, Shamim Ahmed, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned District & Sessions, Karimganj, on each and every date to be fixed by the Court;

(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and

(iii) that the petitioner shall submit his Aadhaar Card and PAN Card before the learned District & Sessions, Karimganj.

(iv) that the petitioner shall not leave the jurisdiction of the learned Sessions Judge, Karimganj, without prior permission. Page No.# 8/8

¶21In terms of above, this bail application stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010119382024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oBailoAppln./1733/2024o SHAMIMoAHMEDo S/O-oSAIBURoRAHMAN,o R/O-oVILLAGEoSHERALIPUR,o P.S-BADARPUR,oDIST-oKARIMGANJ,oASSAM VERSUSo THEoSTATEoOFoASSAMo REPRESENTEDoBYoTHEoPUBLICoPROSECUTOR AdvocateoforotheoPetitionerooooo:oMRoMASUMoAZIZoCHOUDHURY AdvocateoforotheoRespondento:oPP,oASSAM,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA