Mujammil Hussain v. Union of India

ORDER

28.08.2024

¶1Heard Mr. A. Ahmed, learned counsel for the petitioners. Also heard Mr. S C Keyal, learned Standing Counsel, NCB.

¶2This is an application made under Section 439 Cr. P.C. seeking bail by the Page No.# 2/6 accused/petitioner, namely, Mujammil Hussain, who was arrested on 22.07.2021 in connection with NDPS Case No.05/2022, NCB Crime No.17/2021 complaint under section 36A for commission of offence under section 8(c) and punishable under section 20(b)-(ii)(c) & 29,35,54,61, 60,66,68 and 69 of 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 petitioner has been under incarceration for more than three years.

¶4Per contra, Mr. S C Keyal, learned standing counsel, 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.

¶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 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 Page No.# 3/6 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.

¶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 Page No.# 4/6 case.

¶12The prosecution case is that on 20.07.2021, at about 9.20 PM on the basis of secret information, a vehicle bearing Registration No. HR 55U 6974 was checked at Amingaon and ganja weighing about 537.26 kgs were recovered from the aforesaid vehicle. Contrabands were concealed in the cabin of the vehicle driven by the present petitioner. The petitioner confessed his involvement in illicit trafficking of the seized contraband for monetary benefit and he was accordingly arrested. The petitioner in his statement recorded under section 67 revealed that Bishal Debbarma, Bayar Debbarma @ Jakki, Bikram Debbarma and Sahison Debbarma @ Sanjit were the associate suppliers of the seized ganja.

¶13The charges under section 20(b)-(ii)(c) & 29, of the NDPS Act, were framed by the learned trial Court 26.07.2023.

¶14From the record, it is seen that the petitioner Mujammil Hussain was arrested on 22.07.2021. The final complaint was filed by the NCB on 13.01.2022 i.e. almost six months was taken from arrest to file final complaint. The examination of the witness started with effect from 12.10.2023 till date out of total 8 (eight) witnesses only 4 (four) witnesses have been examined. The record further reveals that one witness was examined on 29.01.2024 and thereafter, the NCB could not produce any witness and it gave an explanation before the learned Special Judge that the NCB witness is unable to attend due to administrative commitment. In that background, bailable warrant of arrest was also issued against the Intelligence Officer, NCB. Thereafter, the matter was fixed on

24.04.2024 for evidence. However, the PW was examined in chief partly only and the matter was again fixed on 09.05.2024. However, on that date, the witness was not present on the ground that he had taken leave and again matter was fixed on 04.06.2024 for evidence. On that day also, though the witness was present, his evidence was not completed. Again matter was fixed on 25.06.2024 Page No.# 5/6 for cross examination of the said PW. It is stated at the bar that recording of such evidence of the said PW has also not yet been completed. Thus, it is seen that though the petitioner was arrested in the year 2021, he is still languishing in jail without completion of the trial. The way in which the witnesses are brought by the prosecution, in the considered opinion of this Court, there is no likelihood of conclusion of trial at an early date.

¶15A very important aspect of the matter is that though the Final Complaint was filed by NCB on 13.01.2022, till date not a single independent seizure witness has been examined. Record also reveals that the trial got delayed for the reason that in most of the occasions, the witnesses were not produced by the NCB. The fact also remains that most of the co-accused have been enlarged on bail.

¶16For the reasons, discussed hereinabove, this Court is of the view that the petitioner has been able to make out a case for grant of bail and has been able to make out a case for grant of bail.

¶17Now coming to the other aspect of the matter that there is no likelihood of the petitioners committing any further similar offence, this Court is of the view that such anxiety can be redressed if stringent conditions are imposed while granting bail.

¶18Considering 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 debarred from hampering and tampering or influencing the witnesses.

¶19In view of the peculiar facts and circumstances of the case, the petitioners namely Mujammil Hussain be released on bail on executing a bail bond of Rs. 1,00,000/-(One lakh) with two suitable local government solvent sureties of like amount, to the satisfaction of the learned District and Session Judge, Kamrup, Amingaon, in Page No.# 6/6 connection with aforementioned case. The bail granted to the petitioners shall be subject to following conditions:-

(a) The petitioner shall not leave the territorial jurisdiction of learned District & Sessions Judge, Kamrup, Amingaon, 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 their passport, if any (if not already surrendered) before the learned District & Sessions Judge, Kamrup, Amingaon.

(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 and original residential address with proof before 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 learned trial Court below on each and every date of appearance during trial, subject to learned trial Court dispensing with such condition as and when required. In the aforesaid terms, this bail petition is allowed. JUDGE Comparing Assistant

Page No.# 1/6 GAHC010276702023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4487/2023 MUJAMMIL HUSSAIN S/O SHAUKAT ALI, R/O KSHA SADAR VA PASCHIMI, KUNDARKI, P.S.- KUNDARKI, DIST.- MURADABAD,U.P. VERSUS UNION OF INDIA TO BE REP. BY THE NARCOTICS CONTROL BUREAU, GUWAHATI ZONAL UNIT, GUWAHATI. Advocate for the Petitioner : MR. A AHMED, U U KHAN,MR A AHMED Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY