Suman Das Adhikari v. The State of Assam

ORDER

30.07.2024

¶1Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner, namely, Sri Suman Das Adhikari, Page No.# 2/7 who has been detained behind the bars since 01.11.2022 (for last more than one year and eight months) in connection with NDPS Case No. 39/2023, arising out of Guwahati G.R.P.S. Case No. 147/2022 under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985, which is pending in the Court of learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati.

¶3The learned counsel for the petitioner has submitted that this is for the second time, the petitioner is approaching this Court for bail. His earlier application was rejected by this Court, by order dated 19.04.2024 in Bail Application No. 180/2024 on merits after perusal of the available records.

¶4The gist of accusation in this case is that on 31.10.2022, one Madan Ch. Kalita, had lodged an FIR before the Officer-in-Charge of G.R.P.S. Guwahati, inter-alia , alleging that on that day, the informant, who is also an SI of Police was conducting train checking duty at Guwahati Railway Station. While the train No. 12423 DN (Rajdhani Express) was standing at Guwahati Railway Station Platform No. 1, two persons namely, Sandip Das and Suman Das Adhikari (present petitioner), who were travelling in Coach No. B-2 of the said train in Seat No. 62 and 70 were found carrying 6 numbers of bags. On search of the said bags, 22 numbers of packets containing suspected ganga (Cannabis) were found from their possession. The total weight of the ganga seized from the accused persons was found to be 104.260 Kg.

¶5On receipt of the said FIR, G.R.P.S. Case No. 147/2022 was registered and the investigation was initiated.

¶6Ultimately, on completion of the investigation, charge-sheet was laid against the four accused persons, including the above-named petitioner under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985.

¶7The learned counsel for the petitioner has submitted that though the Page No.# 3/7 charge-sheet was laid in this case on 31.12.2022 and the charges were framed against the present petitioner on 08.06.2023, however, till date, not even a single witness out of total 6 listed witnesses has been examined by the prosecution side.

¶8It is also submitted that there is no likelihood of culmination of trial at the earliest and as the petitioner has been detained behind the bars for more than one year and eight months, without there being any progress in his trial, he is entitled to get bail.

¶9The learned counsel for the petitioner has also submitted that though the embargo of Section 37 of the NDPS Act, 1985 is mandatory in nature, however, considering the long incarceration of the above-named petitioner, as well as stage and progress of the trial, the embargo of Section 37 of the NDPS is lifted and it gives way to the Fundamental Right of the petitioner guaranteed under Article 21 of the Constitution of India.

¶10The learned 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 Hon'ble 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."

¶11The 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 Page No.# 4/7 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 years 8 months may be allowed to go on bail.

¶12On the other hand, Mr. K.K. Parasar, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the above-named petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity, and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case.

¶13I 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. 39/2023 which was called for in connection with this case.

¶14The 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".

¶15The Apex Court in "Rabi Prakesh Vs. State of Orissa" (supra), wherein it has been observed by the Apex Court that "The prolonged Page No.# 5/7 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."

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

¶18It 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 behind bars for one year and six months.

¶19In "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.# 6/7

¶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 one year six months.

¶22In 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 one year eight months already undergone by the above-named petitioner and in view of the fact that not even a single witness has been examined, the fundamental right guaranteed to the petitioner under Article 21 of the constitution of India outweighs the embargo of Section 37 of the NDPS Act, 1985 in this case and as such, the above-named petitioner is entitled to get bail on the ground of prolonged incarceration only.

¶23In view of the above, the above-named petitioner is allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount (both the sureties should be the permanent resident of the State of Assam) subject to the satisfaction of the learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 39/2023, which is pending in the Court of learned Additional Sessions Judge No. 2, Kamrup(M), Guwahati; ii. That the petitioner shall appear before the Trial Court as and Page No.# 7/7 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 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.

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

JUDGE Comparing Assistant

Page No.# 1/7 GAHC010130242024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1913/2024 SUMAN DAS ADHIKARI S/O GOPAL DAS ADHIKARI R/O HARIDRADANGA GAREDHAR UTTAR, P.S. CHANDANNAGAR DIST. HOOGHY, WEST BENGAL. VERSUS THE STATE OF ASSAM TO BE REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA