Mridul Das and Anr v. The State of Assam

Order o Page No.# 2/6

01.12.2023

¶1Heard Mr. M Ahmed, learned counsel for the petitioners. Also heard Mr. D Das, learned Additional Public Prosecutor.

¶2This is an application made under Section 439 Cr. P.C. seeking bail by the accused/petitioners, namely, Mridul Das and Muktadul Amin, who were arrested on 22.06.2022 in connection with NDPS Case No.220/2022 arising out of Garchuk PS case No. 194/2022 registered under Sections 20(C)/29 of the NDPS Act.

¶3Mr. Ahmed, 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 1 year.

¶4Mr. Ahmed 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. Das, learned Additional Public Prosecutor 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 Page No.# 3/6 state from the vehicle used by the petitioners to transport the same. Therefore, the conscious possession has already been established and the alleged violation of Section 52A 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.

¶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 Page No.# 4/6 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 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. Page No.# 5/6

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

¶13The prosecution case is that on 22.06.2022 at about 11:30 a.m., 29.389 kg of Ganja had been recovered from a vehicle and the present petitioners are the occupants of the aforesaid vehicle.

¶14The charge-sheet was filed on 18.09.2022, charges under Section 20(C) of the NDPS Act was framed by the learned trial Court 02.11.2022. The prosecution has proposed to lay their case on the basis of eight witnesses.

¶15Out of eight witnesses, five witnesses are examined till date. The materials so far collected suggest that both the petitioners are the occupants of seized vehicle (Bolero) from where the alleged contrabands were recovered from a secret chamber created in the vehicle.

¶16There 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.

¶17In view of the aforesaid, in the considered opinion of this Court, the petitioners have 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 witness therein, in the considered opinion of this Court ends of justice Page No.# 6/6 would be met if the trial is directed to be completed within a period of six months from today. Ordered accordingly.

¶18It 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 petitioners taking note of the decision rendered by the Hon'ble Apex Court in the case of Mohd. Muslim (Supra). However, it is also made clear that the trial should not be delayed by the defence.

¶19With the aforesaid, this bail application stands closed.

JUDGE Comparing Assistant

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