Md. Safiqur Rahaman v. The Union of India

ORDER

12.09.2024

Heard Mr. U. S. Borgohain, learned counsel appearing for the accused petitioner as well as Mr. K. Jain, learned counsel representing NCB.

¶2By filing this petition under Section 483 of the BNSS, 2023 the accused-petitioner, namely, Md. Safiqur Rahaman, has prayed for grant of bail in connection with NDPS Case No.131/2021 under Sections 22(C)/29 of NDPS Act arising out of NCB Case No. 6/2021 pending in the court of learned Additional Sessions Judge, No.2, Kamrup(M), Guwahati. Page No.# 2/6

¶3The facts of the case leading to this bail application is that on 06.03.2021, the NCB team on receipt of secret information searched one Ford car bearing No. MN-05-A-7260 and recovered ten packets of methamphetamine tablets weighing

10.276 kgs and arrested two accused persons namely the present petitioner and co-accused Krishna Mahapatara Mali. A case was registered vide NCB Crime No. 06/2021 under Section 22(C)/29 of NDPS Act and the recovered items were seized.

¶4The learned counsel for the petitioner has argued that in this case charge-sheet has been laid and thereafter charge has also been framed by the trial court on 07.04.2022 but out of 15 witnesses only two witnesses were examined by the prosecution side. In fact, there is no progress in the trial.

¶5It is further submitted that the accused petitioner has been languishing in judicial custody for more than three years since his arrest on 06.03.2021. The petitioner is no way connected with the alleged offence. The co-accused mentioned his name before the NCB as such he has been falsely arrayed in this case. Considering the length of detention, the petitioner may be enlarged on bail.

¶6In response, Mr. Jain, learned NCB counsel has submitted that the NDPS Act came into existence to curb the menace of narcotic drugs. The Act was amended subsequently and Section 37 of the Act was inserted in the year 1989 which provides restrictions on bail of those offenders who indulged in serious offences like trafficking of narcotic drugs in the state.

¶7It is further submitted that the ground of long incarceration and applicability of Article 21 of the Constitution of India cannot be a ground for seeking bail in heinous crime like trafficking of narcotic drugs. Article 21 of the Constitution of India guarantees personal liberty to everyone. In criminal law, a person accused of an offence which is non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such Page No.# 3/6 detention cannot be questioned as being violative of Article 21 since the same is authorized by law. Learned NCB counsel also added that when the seriousness of an offence is such, the mere fact that he was in jail for however long should not be the concern of the court and in heinous crime, length of tenure in custody may not be the only factor of consideration for the grant of bail.

¶8The learned NCB counsel also contended that mere delay in trial cannot be a ground for seeking bail. There may be many reasons for delay in trial which is beyond the control of either prosecution, accused and his counsel or the trial court. Keeping in view the aforesaid reasons and delay in trial, the Hon'ble Supreme Court while dealing in different factors for delay in trial in the case of Satyender Kr. Antil vs CBI reported in (2021) 10 SCC 51 held that Section 436A of Code of Criminal Procedure would apply to the special Acts also in the absence of any specific provisions, meaning thereby when an accused is in jail during trial half of the maximum period of sentence, then he is entitled to bail and in such circumstances, rigors of Section 37 of the NDPS Act will not come into play.

¶9Learned NCB counsel also pointed out that in NDPS Case, the maximum sentence is twenty years and in case an accused is under judicial custody for ten years or more in such circumstances, he would be entitled to bail. But in the instant case, the present petitioner is in judicial custody for three plus years as such he is not entitled to be released on bail on the ground of either long incarceration or violation of his right under Article 21 or delay in trial. In support of his submission the learned counsel, NCB has also relied on the following case laws:

(i) Hira Singh vs Union of India reported in (2020) 20 SCC 272.

(ii) NCB vs Kishan Lal (1991) 1 SCC 705. Page No.# 4/6

(iii) Union of India vs Ram Samujh and anther reported in

(1999) 9 SCC 429.

(iv) State of Punjan vs Rakesh Kumar, reported in (2019) 2 SCC 466.

(v) Rajesh Ranjan @ Papu Yadav vs CBI (2007) 1 SCC

70.

(vi) Animul Islam vs Union of India reported in (2022) O Supreme Gau 321.

¶10Having heard the learned counsel for the parties and on perusal of the trial court record, the admitted position is that the petitioner was arrested on

06.03.2021. Charge was framed on 07.04.2022. Two witnesses were examined on

29.02.2024 and 05.04.2024 respectively. It also reflects that on 02.11.2023 though two witnesses were present but they were not examined as learned counsel for the accused Krishna Mahapatra Mali has prayed for adjournment. It also appears from the order sheet that on 02.09.2023, 05.10.2023 and 04.01.2024 though witnesses were present but they were not examined as the accused persons have failed to engage their counsel. It transpires that the trial of the case is not delayed only due to the fault of the prosecution side or the trial court. At the same time, the delay was caused for non co-operation of the counsel for the accused also.

¶11It is also not in dispute that the accused petitioner was driving the Ford car bearing No. MN-05-A-7260 from which commercial quantity of narcotic drugs were recovered.

¶12Under such backdrop, the rigors of Section 37 of NDPS Act will come into play. Section 37 (b) (ii) of the NDPS Act provides that when the Public Prosecutor Page No.# 5/6 opposes the bail in respect of the offence u/s 19 or Section 24 or Section 27 (A) of the NDPS Act as well as the offence involving commercial quantity, court can grant bail only when it is satisfied that there is reasonable ground for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is no doubt true, that in order to have a satisfaction, that there is no reasonable ground for believing that the accused is not guilty of committing the offence, court is not required to enter into the detailed appreciation of evidence, nor the court is required to record a finding of not guilty. What the law requires is that there must be material, something more than prima facie, from which a reasonable person can believe that the accused has not committed the offence.

¶13From the materials on record, it is apparent that the contraband seized in the instant case was of commercial quantity and evidently the petitioner was driving the alleged vehicle by which the contraband was transported.

¶14In view of the materials on record, as indicated above, I find no reasonable ground to believe at this stage, that the petitioner was not involved in the offence alleged, and as such, the limitation u/s 37 of the NDPS Act would apply in the instant case. It is also revealed from the record and the submission of the learned counsel that the trial has already commenced and two witnesses of the prosecution have been examined. Therefore, having considered the materials in its entirety, more particularly the fact that the offence involves the contraband of commercial quantity and in absence of convincing materials, from which one can reasonably believe even for the purpose of bail, that the petitioner was not involved in the offence, the petitioner cannot be held to have been able to make out a case for bail u/s 37 of the NDPS Act.

¶15Being of the above view, the prayer for bail is rejected. Page No.# 6/6

¶16Accordingly, this bail application stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/6 GAHC010135502024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1985/2024 MD. SAFIQUR RAHAMAN S/O- MD. RIYAJUDDIN, R/O- LILONG HAOREIBI, TUINEL AHANBI LING, NEAR NOR HOSPITAL, P.O. LINONG, P.S. LILONG, DIST.- TOUBAL STATE MANIPUR PIN- 795130 VERSUS THE UNION OF INDIA REP BY THE SC, NCB Advocate for the Petitioner : MR U S BORGOHAIN, MS DIPSY RAJA Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI