Zorammawia v. The State of Assam

ORDER Date : 20.12.2023

¶1Heard Mr. P.K. Deka, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor for the State respondent. Page No.# 2/6

¶2This application under section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Zorammawia, who has been detained behind the bars since 28.11.2021 (for last 753 days) in connection with NDPS Case No. 120/2021 corresponding to Ratabari P. S. Case No. 573/2021 pending before the Court of learned Special Judge, Karimganj.

¶3Learned counsel for the petitioner has submitted that the present petitioner is facing a trial for alleged possession of commercial quantity of contraband i.e. 605 gram of heroin along with two other accused persons, namely, 1. Jamil Ahmed, and 2. Lalthan Sailo.

¶4Learned counsel for the petitioner has also submitted that in the meanwhile one of the co-accused, namely, Jamil Ahmed has been allowed to go on bail by a Coordinate Bench of this Court by order dated 01.08.2023 passed in Bail Application No. 1996/2023 and the present petitioner is languishing behind the bars.

¶5It is also submitted by the learned counsel for the petitioner that till now only three prosecution witnesses have been examined out of the 7 listed prosecution witnesses and there is no likelihood that the culmination of the trial against the present petitioner would take some time.

¶6It is further submitted by the learned counsel for the petitioner that the petitioner is entitled to get bail mainly on the ground of prolonged incarceration as per the observations of Hon'ble Apex Court in "Mohd Muslim @ Hussain Vs. State" (NCT of Delhi) reported in 2023 SCC Online SC 352 as well as in "Rabi Prakash Vs. The State of Odisha" [order dated 13.07.2023 passed in Special Leave to Appeal (Crl.) No. 4169/2023]. The Apex Court has observed in the aforementioned cases that prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. Page No.# 3/6

¶7Learned counsel for the petitioner has also submitted that though the petitioner is a permanent resident of Mizoram and he would face the trial if he is allowed to go on bail.

¶8On the other hand, learned Additional Public Prosecutor has submitted that the co-accused who was allowed to go on bail is a resident of Assam whereas the present petitioner is a resident of Mizoram and further there are incriminating materials against the present petitioner on record.

¶9Learned Additional Public Prosecutor has also submitted that as the quantity of contraband seized in this case i.e. 605 grams of heroin is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 come into play and thereafter, on that ground he vehemently opposed the grant of bail to the present petitioner.

¶10I have considered the submissions made by learned counsel for both the sides and has perused the scanned copy of the case record of NDPS Case No. 120/2021.

¶11Though this case involves commercial quantity of contraband, however, considering the fact that the petitioner has been detained behind the bars for more than last 2 years, the question before this Court is that whether prolonged incarceration of the petitioner overrides the embargo of Section 37 of the NDPS Act, 1985. If this Court comes to a finding that the delay is long enough, so as to come to the finding that the embargo of Section 37 of the NDPS Act, 1985 has been outweighed by the fundamental right guaranteed to the present petitioner under Article 21 of the Constitution of India, he may have to be released on bail in spite of the embargo of Section 37 of the NDPS Act, 1985.

¶12It also appears that the delay in the trial in this case is not due to the fault of the present petitioner, as he has been detained behind the bars Page No.# 4/6 throughout his trial. The petitioner has a right to get speedy trial under Article 21 of the Constitution of India

¶13Hon'ble Supreme Court of India in "Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" reported in "2023 SCC Online SC 352" has observed that "grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985" and also considering the observation of Hon'ble Supreme Court of India in "Rabi Prakash Vs. State of Orissa" (supra), wherein Hon'ble Apex Court has observed that "prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37 (1) (b) (ii) of the NDPS Act, 1985", this Court is of considered opinion that if this Court comes to a finding that there is undue delay in completion of trial and that there is prolonged incarceration of the petitioner, he would be entitled to get bail on the ground of prolonged incarceration only as in such case of prolonged incarceration, the fundamental right to life and personal liberty under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37 of the NDPS Act, 1985.

¶14It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to the accused facing charges for possession of commercial quantity of contraband only on the ground of prolonged incarceration in "Shariful Islam @ Sarif Vs. State of West Bengal" (order dated

04.08.2022 in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months.

¶15In "Nitesh Adhikari Vs. State of West Bengal "(Order dated 04.05.2022 in SLP Criminal No. 5769/2022), Hon'ble Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months. Page No.# 5/6

¶16Similarly, in "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Order dated

22.08.2022 in SLA Criminal No. 5530/2022), the petitioner was granted bail, by the Apex Court, on the ground of prolonged incarceration of two years.

¶17In the instant case, the petitioner has been detained behind the bars since 28.11.2021 (for last 753 days) and only three prosecution witnesses have been examined. There is a likelihood that culmination of the trial would take some time and under the facts and circumstances of the present case, this Court is of the considered opinion that the long incarceration of the petitioner for more than 2 years has outweighed the embargo of Section 37 of the NDPS Act, 1985.

¶18One of the co-accused has already been granted bail by a Coordinate Bench of this Court on the ground of long incarceration, therefore, this Court is of considered opinion that the petitioner is entitled to get bail in this case.

¶19In view of above, the above-named petitioner is hereby allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh) with two suitable sureties, one of whom should be a government employee and should be resident of the State of Assam, of like amount to the satisfaction of the Trial Court with conditions:- i. That the petitioner shall cooperate in the trial of NDPS Case No. 120/2021, which is pending in the Court of learned Special Judge, Karimganj; ii. That the petitioner shall regularly appear before the learned Trial Court as and when so required by the learned Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the learned Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including Page No.# 6/6 photocopies of his Aadhar Card, Driving License, PAN card, mobile number, and other contact details before the Officer-In-Charge of Ratabari Police Station; v. That the petitioner shall not leave the jurisdiction of the learned Trial Court without prior permission of the learned Trial Court and when such leave is granted by the learned Trial Court, the petitioner shall submit his leave address and contact details during such leave before the learned Trial Court; vi. That the petitioner shall not commit any offence similar to the one for which he has been accused of, while he is on bail.

¶20With the above observations, this bail application is hereby disposed of. JUDGE Comparing Assistant

Page No.# 1/6 GAHC010251042023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4040/2023 ZORAMMAWIA S/O K. VANLALNGHAKA VILL- THINGHULUN P.O. ZAWLNUAM, P.S. KANMUN DIST. MAMIT, MIZORAM, PIN-796471 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. I H LASKAR Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA