Nijam Daimary @ Vebala v. The State of Assam

ORDER Date : 18.10.2023

Heard Mr. S. Choudhury, learned counsel appearing for the accused petitioner as well as Mr. B. Sarma, learned Addl. P.P., Assam appearing for the State respondent. By this petition under Section 439 Cr.P.C., the accused-petitioner, namely, Nijam Daimary @ Vebala, has prayed for grant of bail in connection with Special (NDPS) Case No. 15/2021 arising out of Chariduar P.S. Case No. 21/2021 under Section 20(b)(ii)(c) of the NDPS Act. The scanned copy of the case record, as called for, is placed before the Court. Page No.# 2/3 It is noticed that the accused petitioner has been in judicial custody since

09.02.2021, i.e. for 982 days. The case relates to recovery and seizure of 110 kgs. of ganja from the possession of the accused petitioner. Mr. Choudhury, learned counsel for the accused petitioner, submits that the accused has been in judicial custody for last 982 days on accusation of allegedly possessing 110 kgs. of ganja. Mr. Choudhury also submits that in the instant case, the learned Trial Court has examined 6 prosecution witnesses out of 9 listed witnesses. Mr. Choudhury further submits that the accused petitioner is a permanent resident under Majbat P.S. and there is no chance of him jumping the course of trial. Per contra, Mr. Sarma, learned Addl. Public Prosecutor, submits that as the accused has been facing trial for allegedly possessing commercial quantity of ganja and in view of the bar under Section 37 of the NDPS Act, the bail prayer of the accused may not be accepted. A perusal of the case record, inter-alia, reveals that the learned Trial Court, after framing of charges, has examined 6 prosecution witnesses, out of 9 listed witnesses. On the other hand, it is also noticed that the accused petitioner has criminal antecedent. However, in the backdrop of facts and evidence, as emerged from the case record and also considering the length of detention, this Court is of the opinion that although there is bar under Section 37 of the NDPS Act in granting bail in matters involving commercial quantity, in view of the mandate under Article 21 of the Constitution of India, if the accused petitioner is released on bail, the remaining part of the trial is unlikely to be hampered. Accordingly, it is provided that the accused petitioner, named above, shall be released on bail of Rs. 1 Lakh with two sureties of like amount to the satisfaction of the learned Special Judge (NDPS Act), Sonitpur, Tezpur subject to the following Page No.# 3/3 conditions-

i) That the accused petitioner shall continue to appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of; and

ii) That the accused petitioner shall not directly or indirectly make any inducement, threat or promise to any of the remaining prosecution witnesses; and

iii) That the accused petitioner shall refrain from committing any similar offences in future, of which he is suspected of commission; and

iv) That out of the two sureties, one must be a government servant subject to verification of the relevant documents, if deemed necessary and after such verification, the learned Court below shall return the original documents retaining legible scanned copy thereof on record for future reference. Any breach of the above conditions shall render cancellation of the bail in accordance with law. This disposes of the bail application.

JUDGE Comparing Assistant

Page No.# 1/3 GAHC010196792023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3123/2023 NIJAM DAIMARY @ VEBALA SON OF VIKRAM DAIMARY, RESIDENT OF VILLAGE- SANG DIMA SANGA, P.O. MAJBAT, P.S. MAJBAT, DISTRICT- UDALGURI, ASSAM, PIN- 781125 VERSUS THE STATE OF ASSAM REPRESENTED BY P.P., ASSAM Advocate for the Petitioner : MR. S CHOWDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR