Parimal Sarkar v. The State of Assam

ORDER Date : 09.10.2023

Heard Mr. S. Ahmed, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent.

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¶2This is an application under Section 439 of the Code of Criminal Procedure, 1973, praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 11(H) of 2023, arising out of Hojai P.S. Case No. 416/2022, registered under Sections 20(C)/29 of the NDPS Act.

¶3Scanned copy of the case record has been received and I have perused the same.

¶4It is submitted by the learned counsel for the petitioner, Mr. Ahmed, that the case has already been Charge-Sheeted and the accused/petitioner is behind the bar since last 385 days and the case is at the stage of evidence and out of 5

(five) witnesses, 4 (four) numbers of witnesses are already been examined. More so, the accused is innocent and he is no way connected with the alleged offence and there is no chance of absconding if the accused/petitioner is enlarged on bail. However, he undertakes to appear before the learned Court below on each and every date of hearing if he is allowed to go on bail.

¶5In this context, the learned Additional Public Prosecutor, Mr. Sarma, has submitted that from the scanned copy of the case record, it reveals that 4 (four) numbers of witnesses have already been examined and summons were also issued to the witness No. 5 and the date was fixed for evidence of P.W.-5 on

27.09.2023, however the said witness did not turn up and the next date for hearing was fixed today, i.e. 09.10.2023, by the learned Court below. However, he is not is a position to say as to whether the P.W.-5 has already appeared before the learned Court below for deposition. He further submitted that it is a case of commercial quantity and the rigor of Section 37 of the NDPS Act is Page No.# 3/4 applicable and accordingly, raised objection in granting bail to the present petitioner.

¶6After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the case record and it is seen that the case is at the stage of evidence and already 4 (four) numbers of witnesses have been recorded by the learned Court below. More so, on perusal of the evidences as well as the case record, it is seen that there is no reasonable ground to believe that the accused is not guilty under Sections 20(C)/29 of the NDPS Act as alleged against him and also there is no convincing evidence that there is no probability of committing the offence of the same nature if he is enlarged on bail. More so, the rigor of Section 37 is applicable in the present case.

¶7Section 37 of the NDPS Act reads as under:

"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 2[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—

(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 Page No.# 4/4 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."

¶8So, from the entire discussions made above, it is seen that only on the ground of length of detention, the present petition cannot be considered and there is also no ground to consider that the accused/petitioner is not guilty under Sections 20(C)/29 of the NDPS Act. Further, from the case record, it is seen that the case is at the evidence stage and there is every probability of the disposal of the case within a short period.

¶9Accordingly, considering all above aspects of the case, I find that this is not a fit case where the accused can be allowed to go on bail at this stage and accordingly, the same stands dismissed. However, the learned Special Judge is hereby directed to dispose of the matter as early as possible, preferably within a period of 6 (six) months from today.

¶10With the above observation, this bail application stands disposed of. JUDGE Comparing Assistant

Page No.# 1/4 GAHC010181572023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2907/2023 PARIMAL SARKAR S/O- LATE DINABANDHU SARKAR, R/O- LANKA TOWN, WARD NO. 4, GOBINDA NAGAR, P.S. LANKA, HOJAI, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE P.P., ASSAM Advocate for the Petitioner : MR B P BORAH Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA