Deben Singh and Anr v. The State of Assam

ORDER Date : 17.09.2024

1) Heard Mr. M. Rahman, learned counsel for the petitioners. Also heard Ms. N. Das, learned Additional Public Prosecutor for the State of Assam. 2) This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioners namely, Deben Singh and Muktasara Devi who have been detained behind the bars since 17.12.2022 (for last more than 1 year 9 months) in connection with Special NDPS Case No.42/2023 corresponding to Lumding P.S. Case No.201/2022 under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985. 3) The gist of the accusation in this case is that on 16.12.2022, one Jagadish Rabha, S.I. of Police had lodged a FIR before the Officer-in-Charge of Lumding Police Station, inter-alia, alleging that on receipt of an information through reliable sources, huge quantity of drugs were being carried out in two vehicles from Dima Hasao towards Lumding and a naka checking was conducted at National Highway No.27 near 2nd APTF. During naka checking, two vehicles were intercepted, namely, HR 38 A 2522 (Tata 4X4 Truck) and Hyundai vehicle car bearing Registration No. AS11R4404 and during search of the said vehicle 1150 kg of suspected ganja was recovered there from and the driver and passengers of the said vehicle were apprehended. 4) On receipt of the said FIR, Lumding P.S. Case No.201/2022 was registered and investigation was initiated. Ultimately, on completion of investigation, Charge-sheet was laid on 29.04.2023 against the present Page No.# 3/7 petitioners and other co-accused persons. 5) The learned counsel for the petitioners has submitted that though the Charge-Sheet in this case was laid on 29.04.2023, and though the charge was framed against the petitioners on 29.09.2023, however, till date out of six listed prosecution witnesses in the Charge-Sheet only two have been examined and even after prolong incarceration of more than 1 year and 9 months undergone by the petitioners, the Trial Court has not progressed and there is no hope of culmination of the trial at the earliest. Hence, he has submitted that the petitioners are entitled to get bail on the ground of prolonged incarceration. 6) The learned counsel for the petitioners has also submitted that in the meanwhile, one of the co-accused, namely, R. Yaruibo has already been granted bail by this Court on 25.06.2024 in Bail Application No.4205/2023. 7) The learned counsel for the petitioners has also submitted that though in the present case the quantity of contraband, which is involved, is commercial quantity, however, as the petitioners have undergone prolonged incarceration and there is no hope of early disposal of the case, and the trial has not fairly progressed, their right guaranteed under Article 21 of the Constitution of India outweigh the embargo to Section 37 of the NDPS Act, 1985. 8) Therefore, the learned counsel for the petitioners has also submitted that as there is an inordinate delay in culmination of trial, the embargo of Section 37 of the NDPS Act, 1985 gives weigh to the fundamental right to the petitioners are mandatory in nature. 9) 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 weigh to the petitioners of the Fundamental Right guaranteed under Article 21 of the Constitution. Page No.# 4/7 10) On the other hand, learned Additional Public Prosecutor has opposed the grant of bail to the petitioners on the ground that commercial quantity of contraband is involved in this case and, therefore, embargo of Section 37 of the NDPS is applicable to the case. 11) I 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 Special (NDPS) Case No.42/2023, which was called for in connection with this case. 12) It appears from the record that since the date of arrest, i.e., 17.12.2022, the petitioners have been detained behind the bars and though the charges were framed on 29.09.2023, however, till now, only 2 prosecution witnesses have been examined and the trial has not yet been completed in spite of the fact that the petitioners have been detained behind the bars for the last 1 years 9 months. 13) The Hon'ble 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". 14) The Hon'ble 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." 15) It appears on perusal of the rulings cited by learned counsel for the petitioners that in all the cases cited by the petitioners, though commercial Page No.# 5/7 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. 16) In 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 petitioners is 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 petitioners under Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985. 17) In "Nitesh Adhikari Vs. State of West Bengal" (Order dated

04.05.2022 passed in SLP Criminal No. 5769/2022), 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. 18) In "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 petitioners, who are facing a trial for possessing a commercial quantity of contraband on the ground of prolonged incarceration of 1 year 6 month. 19) In the present case also the petitioners have been detained behind the bars for more than 1 year 9 months and the trial has not fairly progressed and in view of the facts and circumstances of this case as well as considering the observations made by the Apex court in the ruling cited herein above, wherein, it has dealt with the question of long incarceration of similarly situated Page No.# 6/7 petitioners, who were before the Apex court, this Court is of the considered opinion that in the instant case also the facts and circumstances are such that in view of the long incarceration of the petitioners, their fundamental rights guaranteed under Article 21 of the Constitution in India outweigh the embargo to Section 37 of the NDPS Act, 1985. 20) The petitioners are therefore, entitled to get bail on the ground of prolonged incarceration. 21) In view of the above, the petitioners, namely, Deben Singh and Muktasara Devi are allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) each with two sureties of like amount (one should be local resident within the State of Assam) subject to the satisfaction of the learned Special Judge, Hojai with the following conditions: i. That the petitioners shall cooperate in the trial of Special

(NDPS) Case No.42/2023, which is pending in the Court of learned Special Judge, Hojai; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 petitioners 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; Page No.# 7/7 v. That the petitioners 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 their leave address and contact details during such leave before the Trial Court; and vi. That the petitioners shall not commit any similar offence while on bail.

22) This bail application is accordingly disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010153892024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:ooBailoAppln./2266/2024 DEBENoSINGHoANDoANR S/OoLATEoLUKAHIoSINGH oR/OoNONGMAIBONG oP.S.-PARONPAL oDIST-EASToIMPHALo(MANIPUR) oASSAM 2:oMUKTASARAoDEVI W/OoDEBENoSINGH oR/OoNONGMAIBONG oP.S.-PARONPAL oDIST-EASToIMPHALo(MANIPUR) oASSAM oVERSUS THEoSTATEoOFoASSAM REPRESENTEDoBYoTHEoPUBLICoPROSECUTOR oASSAM o------------ oAdvocateoforo:oMOTIURoRAHMAN Advocateoforo:oPP oASSAMoappearingoforoTHEoSTATEoOFoASSAM ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA