Birendra Kumar v. Union of India

ORDER Date : 16.11.2023

Heard Mr. M. Biswas, learned counsel for the petitioner and Mr. S.C. Keyal, learned Standing counsel, NCB.

¶2This bail application made under Section 439 Cr.P.C., seeking bail by the accused-petitioner, namely, Birendra Kumar, in connection with NDPS Case No. 33/2020(Corresponding to NCB Crime No. Page No.# 2/5 17/2019), registered under Section 22(C),29,35 & 54 of NDPS Act, 1985, pending before the court of learned Additional District and Sessions Judge No. 1, Kamrup(M), Guwahati.

¶3The learned counsel for the petitioner submits that the accused/petitioner has been detained in custody since 16.11.2019. It is also submitted that out of 14 witnesses, only 10 witnesses were examined. It is also submitted that the inordinate delay in the trial is primarily because the NCB personnel had not turned up to give evidence before the learned trial court. It is further submitted that nothing was recovered from the possession of the petitioner. Under such backdrop, learned counsel for the petitioner has prayed that considering the period of detention, bail may be granted to the petitioner.

¶4In support of his submissions, the learned counsel for the petitioner has placed reliance on the following case laws-

(i) Longjam Brojen v. Union of India in BA No. 1745/2023.

(ii) Rabi Prakash v. The State of Odisha reported in 2023 LiveLa(SC)

533.

(iii) Lamabamayum Brojen Singh v. The Union of India in BA No.3779/2023.

¶5On the other hand, learned Standing counsel, NCB has vehemently opposed in granting bail to the petitioner on the ground that 2.100 kg of Methamphetamine tablets were recovered from the possession of the accused/petitioner which are commercial quantity. It is also submitted that in spite of best efforts, the prosecution has failed to produce the witnesses. Considering the background of the case, bail may not be granted to the Page No.# 3/5 petitioner at this stage of trial.

¶6In support of his submissions, the learned Standing counsel, NCB has placed reliance on the following case laws-

(i) Aminul Islam v. The Narcotic Control of Burea Guwahati Zonal Unit, Guwahati reported in 2023 0 Supreme (Gau)70.

(ii) Huirem Rajen Meitei @ Huiram Rajen Sing @ H Rajen Meitei v The Union of India in BA No. 2758/2023.

(iii) Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023 0 Supreme(SC)289.

¶7I have considered the submissions made by the learned counsel for the parties. I have also perused the scanned copy of LCR.

¶8It appears from the record that the accused has been detained in custody for more than four years. It also appears that out of 14 (fourteen) witnesses, 10(ten) witnesses were examined. It transpires that the prosecution did not take so much of initiative to dispose of the matter within such long period of four years. It is also true that the alleged contraband items were not recovered from the conscious possession of the petitioner.

¶9In the case of Union of India vs. K.A. Najeed reported in (2021) v. 3 SCC 713, the Hon'ble Supreme Court observed that:- "12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have Page No.# 4/5 somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005) 11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial….."

¶10In the case of Satender Kumar Antil vs. Central Bureau of Investigation reported in (2022) (10) SCC 51, the Hon'ble Supreme Court observed that prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply: "We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code." Page No.# 5/5

¶11In view of the aforesaid legal mandates and considering the period of detention, the accused-petitioner, named above, shall be released on bail in connection with NDPS Case No. 33/2020(Corresponding to NCB Crime No. 17/2019), registered under Section 22(C),29,35 & 54 of NDPS Act, 1985, on furnishing bail bond of Rs.1,00,000/- with two suitable sureties of the like amount out of which one of the sureties should be a Government employee, to the satisfaction of the learned Additional District and Sessions Judge No. 1, Kamrup(M), Guwahati,

¶12The direction for bail is further subject to the following condition that the accused-petitioner:

(a) shall not leave the territorial jurisdiction of learned Additional District and Sessions Judge No. 1, Kamrup(M), Guwahati, without prior written permission from him/her.

¶13The learned Additional District and Sessions Judge No. 1, Kamrup(M), Guwahati, is at liberty to impose any condition(s) as it deems fit and proper at the time of releasing the accused/petitioner on bail to procure his attendance during trial.

¶14The observation made above, shall confine for the purpose of disposal of this bail application only and shall not in any way affect the proceeding of the trial.

¶15In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant

Page No.# 1/5 GAHC010239852023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3830/2023 BIRENDRA KUMAR S/O RAM AYODHYA PRASAD R/O VILL- SEMARA, DIST. EAST CHAMPARAN P.O. CHIRAIYA BIHAR-845415 PRESENT ADDRESS- H. NO. 06, FAKRUDDIN ALI AHMED NAGAR, PANJABARI ROAD, SIXMILE, GUWAHATI. VERSUS UNION OF INDIA REP. BY THE STANDING COUNSEL, NARCOTIC CONTROL BUREAU (NCB), Advocate for the Petitioner : MR. M BISWAS Advocate for the Respondent : SC, NCB BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI