Riyazul Ali v. Union of India

ORDER Date : 01-12-2023

¶1Heard Ms. S K Nargis, learned counsel for the petitioner. 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 Page No.# 2/6 the accused/petitioner, namely, Riyazul Ali, who was arrested on

30.08.2019 in connection with NDPS Case No.06/2020 arising out of DRI Case No.07/CL/NDPS/GANJA/DRI/GZU/2019-20.

¶3Ms. Nargis, 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 4 years.

¶4Ms. Nargis, 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 petitioner is 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 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 have been recovered in a concealed state from the possession of the petitioner. 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 the witnesses are yet to be examined.

¶6Heard the learned counsel for the parties, perused the material available on record. Page No.# 3/6

¶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 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 Page No.# 4/6 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 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 29.08.2019 at about 04:00 hrs., commercial quantity of ganja of 1126.65 Kgs, were recovered in a concealed state from KVT made behind the cabin of a truck bearing registration No. NL-01-AC-1527. The petitioner was the occupant and the driver of the truck.

¶14The final complaint was filed on 20.02.2020, charges under Section 20(b)(ii)(c)/23/27A/29 of the NDPS Act, were framed by the learned trial Court on 01.10.2022. The prosecution has proposed to lay their case on the basis of eight witnesses. Page No.# 5/6

¶15First prosecution witness was examined on 08.01.2023 and altogether four witnesses have been examined till date and the last witness was examined on 07.08.2023. Thus, total four witnesses are yet to be examined and in the meantime, the petitioner has been in custody for more than four years three months as on date.

¶16From the record, it is seen that the trial was delayed primarily during the Covid-19 pandemic, however, after charges were framed on 01.10.2022, out of eight witnesses, the prosecution has already examined four witnesses.

¶17There is no dispute that violation of Section 52 A of the NDPS Act, 1985 may vitiate the entire trial and in a given case, non adherence of procedure under Section 52A of the NDPS Act, 1985, may entail an accused for discharge, however, evaluation of evidence in the trial should be necessary for coming into such conclusion and absence of compliance with Section 52A of the NDPS Act, 1985 may be one of the factors but cannot be only factor to grant bail to the accused.

¶18In view of the aforesaid, in the considered opinion of this Court, the petitioner has failed to satisfy that there are reasonable grounds for believing that the accused is not guilty of the offence charged/alleged. Accordingly, considering the period of trial till date and examination of witnesses therein, in the considered opinion of this Court, ends of justice would be met if the trial is directed to be completed within a period of six months from today. Ordered accordingly.

¶19It is further provided that in the event of failure to complete the prosecution within the stipulated period, the learned trial Court shall consider the grant of bail to the petitioner taking note of the decision Page No.# 6/6 rendered by the Hon'ble Apex Court in the case of Md. Muslim (Supra). However, it is also made clear that the trial should not be delayed by the defence. With the aforesaid, this bail application stands closed.

JUDGE Comparing Assistant

Page No.# 1/6 GAHC010223412023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3547/2023 RIYAZUL ALI S/O MEHRAB ALI R/O VILL- PIALIKHATA P.O. BAIHATA CHARIALI P.S. CHANGSARI DIST. KAMRUP ASSAM PIN-781381 VERSUS UNION OF INDIA REP. BY SC, DRI Advocate for the Petitioner : MS. S K NARGIS Advocate for the Respondent : SC, DRI BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY