Raju Das and Anr v. The Narcotics Control Bureau

ORDER

30.11.2023

¶1Heard Mr. Y. S. Mannan, learned counsel for the petitioners. Also heard Mr. S. C. Keyal, learned Standing Counsel for the NCB.

¶2This is an application made under Section 439 Cr. P.C. seeking bail by the accused/petitioners, namely, (1) Raju Das and (2) Samir Sarkar, who were arrested on 05.10.2019 in connection with NDPS Case No. 30/2020 arising out of NCB Crime No. 14/2019 registered under Sections 20(b)(ii)(C)/29 of NDPS Act, 1985.

¶3Mr. Mannan, learned counsel relying on the decision of the Hon'ble Apex Court in the case of Mohd Muslim –VS-State (NCT of Delhi) reported in AIR 2023 SC 164 contends that, there is no scope for early disposal of trial and the petitioners have been under incarceration for more than 4

(four) years.

¶4Mr. Mannan, learned counsel further submits that there is violation of the Section 52A of the NDPS Act and therefore, in the totality of the matter, the petitioners are entitled for release on bail inasmuch as there is no likelihood of early hearing.

¶5Per contra, Mr. S. C. Keyal, learned Standing Counsel for the NCB relying on the judgment of the Hon'ble Apex Court in the case of Narcotics Page No.# 3/7 Control Bureau –VS-Mohit Agarwal reported in 2022 SCC OnLine 891, argues that without having the satisfaction as regard the embargo placed in Section 37 of the NDPS Act, 1985, only on the ground of long incarceration an accused cannot enlarged on bail. According to him, in the case in hand, the narcotics in commercial quantity had been recovered from a vehicle bearing registration No. NL-01-AD-2291 and the petitioners were the occupants of the said vehicle. Therefore, the conscious possession has already been established and the alleged violation of Section 52 of the NDPS Act, 1985 cannot be considered at this stage on the basis of material available on record inasmuch as some witnesses are yet to be examined.

¶6Heard the learned counsel for the parties, perused the material available on record.

¶7Section 37 of the NDPS Act, 1985, mandates that a Court can grant bail to an accused only after hearing the Public Prosecutor and after having satisfactions of twin conditions that there are reasonable grounds for believing that the accused is not guilty of the offence charged/alleged and that, he is not likely to commit any offence while on bail. Such satisfaction, which the Court is required to record, should be based on reasonable reading and does not called for a meticulous examination of the materials collected during the investigation or during the trial otherwise, the same will amount to mean a complete denial of bail under Section 37 of the NDPS Act, 1985 and the said provision would effectively exclude grant of bail altogether.

¶8Grant of bail, on the ground of undue delay in the trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985, inasmuch as Section Page No.# 4/7 436A of the Cr.P.C., is made applicable to the offences under the NDPS Act by the Hon'ble Apex Court in the case of Satender Kumar Antil –VS-CBI reported in 2022 10 SCC 51.

¶9Section 36A of the NDPS Act, 1985, mandates that the offences under the Act are triable by a Special Court. In the considered opinion of this Court, such mandate of the legislature is to achieve the object that the trials are completed at the earliest possible time inasmuch as the conditions of bail and other provisions under the Act, are very stringent in nature. It is also well settled that reasonable fair and just procedure in a criminal trial is a constitutional obligation on the part of the State. A speedy trial is also one of the dimensions of the fundamental right to life under Article 21 of the Constitution of India (Reference Raghubir Singh –Vs-State of Bihar 1986-4SCC-481).

¶10So far relating to the constitution of Special Court, it is stated at the bar that in the State of Assam, though different Sessions Judges and Additional Sessions Judges are designated as Special Courts under Section 36A of the NDPS Act, 1985, however, these Courts are also simultaneously entrusted with the different Sessions triable offences under IPC, Criminal Appeals under IPC and to act as Special Judges under Special Act like POCSO Act, 2012. In view of such undisputed factual position, the object of speedy trial under the NDPS Act, as discussed hereinabove shall be hardly achievable.

¶11In the totality of the aforesaid backdrop and propositions of law, this Court is of the view that alongside the embargo placed in Section 37 of the NDPS Act, 1985, the ground of undue delay in trial can also be a ground for granting bail inasmuch as the Court is to come to the satisfaction that there Page No.# 5/7 is no likelihood of completion of trial in near future. Thus, such ground of inordinate delay, in the considered opinion of this Court, shall depend on the facts of the each case and the cause of delay is also required to be noted down.

¶12On the aforesaid backdrop, now let this Court look into the facts of the present case.

¶13The prosecution case is that on 03.10.2019 at about 8:00 AM, commercial quantity of ganja of 191.50 Kgs, were recovered in a concealed state from KVT made behind the cabin of a truck bearing registration No. NL-01-AD-2291. The two petitioners were the driver and handyman of the said truck.

¶14The Final Complaint was filed on 02.04.2020, charges under Section 20(b)

(ii)(c)/29 of the NDPS Act, were framed by the learned Trial Court on

31.03.2023. The prosecution has proposed to lay their case on the basis of eleven witnesses.

¶15First prosecution witness was examined on 30.05.2023 and altogether four witnesses have been examined till date and the last witness was examined on 13.10.2023. Thus, total seven witnesses are yet to be examined and in the meantime, the petitioner has been in custody for more than four years.

¶16For the reasons, discussed hereinabove, this Court is of the view that the petitioners have been able to make out a prima facie case that there is no plausible ground to believe that petitioners are guilty of any offence under Section 29 of the NDPS Act, 1985. Page No.# 6/7

¶17Now coming to the other aspect of the matter is that there is no likelihood of the petitioner committing any further similar offence, this Court is of the view that such anxiety of the prosecution can be redressed if stringent conditions are imposed while granting bail.

¶18Therefore, the aforesaid leads to a belief of this Court that there are reasonable grounds that the petitioner is not guilty of such offence. In the aforesaid background, to balance the stringent condition of the NDPS Act, 1985 and the right of the petitioner under Article 21 of the Constitution of India, in the considered opinion of this Court, the petitioner can be released on bail with stringent conditions to ensure that the petitioner does not commit any such similar offence while on bail.

¶19Considering the aforesaid aspects, propositions of law and in the given facts and circumstances of the present case, this Court is of the considered opinion that by imposing stringent conditions, the attendance of the petitioner before the learned trial Court could be secured and he can be barred from hampering and tampering or influencing the witnesses.

¶20In view of the peculiar facts and circumstances of the case, the petitioners namely (1) Raju Das and (2) Samir Sarkar, be released on bail on executing a bail bond of Rs. 1,00,000/-(One lakh) with two local Government suitable solvent sureties of like amount each to the satisfaction of the learned Sessions cum Special Judge (NDPS), Kamrup (M) at Guwahati, in connection with aforementioned case. The bail granted to the petitioners shall be subject to following conditions:-

(a) The petitioners shall not leave the territorial jurisdiction of learned Page No.# 7/7 Sessions cum Special Judge (NDPS), Kamrup (M) at Guwahati, without prior written permission from him;

(b) The petitioners shall not hamper and tamper with the evidence of the case;

(c) The petitioners 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 them from disclosing such facts to the Court or to any police officer.

(d) The petitioners shall surrender their passport, if any (if not already surrendered) before the learned Sessions cum Special Judge

(NDPS), Kamrup (M) at Guwahati.

(e) The petitioners shall not try to contact any of the witnesses by any mode including telephone, social media etc.

(f) The petitioners shall furnish the present residential address with proof to the learned trial Court below and shall not change the said residence without prior permission of the learned trial Court.

(g) The petitioners shall appear before the learned trial Court below on each and every date of appearance during trial. In the aforesaid terms, this bail petition is allowed. JUDGE Comparing Assistant

Page No.# 1/7 GAHC010190212023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3047/2023 RAJU DAS AND ANR S/O LATE RANJIT DAS R/O VILL- GANIYARBIL P.O. KERAILON KHOWAI P.S. TELIAMURA DIST. WEST TRIPURA, TRIPURA PIN-799205 2: SAMIR SARKAR S/O LATE ARADHAN SARKAR R/O VILL- GANIYARBIL P.O. KERAILON KHOWAI P.S. TELIAMURA DIST. WEST TRIPURA TRIPURA PIN-79920 VERSUS THE NARCOTICS CONTROL BUREAU REP. BY THE STANDING COUNSEL, (NCB) Advocate for the Petitioner : MR. Y S MANNAN Advocate for the Respondent : SC, NCB Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY