Jakir Hussain @ Zakir Hussain v. The State of Assam

ORDER Date : 01-12-2023

¶1Heard Mr. M.A. Choudhury, learned counsel for the petitioner. Also heard Mr. D Das, learned Addl. PP, Assam.

¶2This is an application made under Section 439 Cr. P.C. seeking bail by the accused/petitioner, namely, Jakir Hussain @ Zakir Hussain, who Page No.# 2/7 was arrested on 08.04.2022 in connection with (Special) NDPS Case No.57/2022 pending in the court of Special Judge arising out of Ram Krishna Nagar PS Case No.40/2022 registered under Sections 22(C)/25/29 of the NDPS Act.

¶3Mr. Choudhury, 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 petitioner has been under incarceration for more than 1½ years.

¶4Per contra, Mr. D Das, learned Addl. PP relying on the judgment of the Hon'ble Apex Court in the case of Narcotics 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. Mr. D Das learned Additional Public Prosecutor has vehemently objected to the prayer of bail.

¶5Heard the learned counsel for the parties, perused the material available on record.

¶6Section 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 Page No.# 3/7 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.

¶7Grant 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 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.

¶8Section 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).

¶9So 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. Page No.# 4/7

¶10In 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 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.

¶11On the aforesaid backdrop, now let this Court look into the facts of the present case.

¶12The prosecution case is that on 07.04.2022, on the basis of secret information, a vehicle bearing Registration No. MZ 01 1803 was checked and contraband (suspected to be heroin) weighing 2.285 kgs was recovered from the aforesaid vehicle concealed in 175 soap cases and one person namely Sarifuddin of village Dolgram under Ratabari PS was apprehended. It is the further allegation that the aforesaid vehicle was escorted by another vehicle bearing registration No. AS 02D 5628 and two persons were apprehended namely Jakir Hussain, the petitoner and Nurul Islam. The said two persons during their statement recorded under Section 161 Cr.P.C. confessed that their vehicle carrying the contraband narcotics was escorted by the another vehicle driven by Hussain Ahmed Khan. On the basis of such confessional statement, the said Hussain Ahmed Khan was arrested.

¶13The charge sheet was filed on 03.09.2022 charges under Section 22(C)/25/29 of the NDPS Act, was framed by the learned trial Court

13.07.2023. Page No.# 5/7

¶14Till date no witnesses has been examined. The accused Sarif Uddin @ Kala who, according to the prosecution is prime witnesses was granted anticipatory bail by this court under its order dated 25.05.2023 in AB No.1023/2023 and the only accusation against the petitioner is the alleged conspiracy made along with the prime accused, namely, Sarif Uddin @ Kala.

¶15That being the position and in view of the ratio laid down in the case of State Vs. Pallulabid Ahmed Arimutta & Others reported in (2022) 12 SCC 633, and the ratio laid down in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1 that a confessional statement recorded under Section 67 of the NDPS Act, 1985, will remain inadmissible in the trial of an offence under the NDPS Act and therefore, such statement more particularly on the basis of the confessional statement/voluntary statement of the co-accused cannot be a ground to have a reasonable belief that the accused is guilty of the offence.

¶16For the reasons, discussed hereinabove, this Court is of the view that the petitioner has been able to make out a prima facie case that there is no plausible ground to believe that petitioner is guilty of any offence under Section 29 of the NDPS Act, 1985.

¶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 Page No.# 6/7 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 petitioner namely Jakir Hussain @ Zakir Hussain, be released on bail on executing a bail bond of Rs. 1,00,000/-(One lakh) with two suitable solvent sureties of like amount to the satisfaction of the learned Special Judge, Karimganj, Assam in connection with aforementioned case. The bail granted to the petitioner shall be subject to following conditions:-

(a) The petitioner shall not leave the territorial jurisdiction of learned Special Judge, Karimganj, Assam, without prior written permission from him;

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

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

(d) The petitioner shall surrender his passport, if any (if not already surrendered) before the learned Special Judge, Karimganj, Assam. Page No.# 7/7

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

(f) The petitioner 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 petitioner shall appear before the O.C Ram Krishna Nagar PS on the 1st day of every week.

(h) The petitioner 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 GAHC010217782023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3459/2023 JAKIR HUSSAIN @ ZAKIR HUSSAIN S/O SABBIR AHMED VILL- DAKSHIN KEOTI (REFLECTED AS HEOTI IN THE FIR) P.S. PATHERKANDI DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY