Kamlesh Yadav @ Kamlesh Pancham Yadav v. The State of Assam

ORDER

19.12.2023 Heard Mr. M.A. Choudhury, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor, appearing for the State of Assam. This application under Section 439 of the Code of Criminal Procedure, Page No.# 2/4 1973 has been filed by the petitioner, namely, Kamlesh Yadav @ Kamlesh Pancham Yadav, who has been detained behind the bars since 09.04.2022 (for last 619 days) in connection with Special (NDPS) Case No. 56/2022, arising out of Bazaricherra P.S. 64/2022 which is pending in the Court of learned Special Judge, Karimganj. The gist of accusation in this case is that an FIR was lodged by one Niranjan Deka on 08.04.2022 before the Officer-In-Charge of Bazaricherra Police Station, inter-alia, alleging that on that day, during Naka Checking one Night Super Bus of Sherowali Tour & Travels bearing Registration No. AS01HC6269 was searched in front of Churaibari Watch Post at National Highway No. 8 and during search operation suspected ganja of about 8.7 kg was recovered from the possession of one Mithilesh Kumar and thereafter, in the same bus after some time another seizure was made of suspected ganja from the petitioner, namely, Kamalesh Pancham Yadav and thereafter, the present petitioner was arrested on the same day. After completion of the investigation, charge-sheet was laid against the present petitioner along with the co-accused Kamalesh Pancham Yadav under Section 20(b)(ii)(C)/29 of the NDPS Act and thereafter, by order dated 18.03.2023 passed in Special Case No. 56/2022, learned Special Judge, Karimganj had framed charges against the present petitioner and the co accused under Section 20(b)(ii)(C)/29 of the NDPS Act read with Section 34 of the Indian Penal Code. Learned counsel for the petitioner has submitted that though the charges were framed by the learned Trial Court on 18.03.2023 under Section 20(b)(ii)

(C)/29 of the NDPS Act, 1985 read with Section 34 of the Indian Penal Code, however, in Criminal Petition No.765/2023, this Court by order dated

07.12.2023, has quashed the said charges on the ground that only 8.7 kg of Page No.# 3/4 suspected ganja was seized from the possession of the co-accused Mithilesh Kumar and 15 kg ganja was recovered from the possession of the present petitioner Kamlesh Yadav @ Kamlesh Pancham Yadav and apart from the fact that both the present petitioner and the co-accused were traveling in the same bus, there is no material on record to show that there was any connivance or conspiracy between both the accused persons named in the charge-sheet and therefore, the contraband seized cannot be treated as of commercial quantity. Considering the same, learned Additional Public Prosecutor has also fairly submitted that in view of the quashing of the charges the quantity of ganja seized from the present petitioner may not be treated as of commercial quantity. Considering the fact that the order of framing of charges against the present petitioner under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985 read with Section 34 of the Indian Penal Code has already been quashed by this Court, by order dated 07.12.2023, passed in Criminal Petition No. 765/2023 and also considering the fact that the quantity of ganja seized from the present petitioner was only 15 kg which is less than commercial quantity and therefore, the embargo of Section 37 of NDPS Act, 1985 is not applicable in the instant case, the continued detention of the present petitioner does not appear to be justified. This Court also takes into consideration the fact that the petitioner is ready to face trial and co-operate in his trial. In view of the above, the above named petitioner is hereby directed to go on bail of Rs. 30,000/-with two local suitable sureties of like amount to the satisfaction of the learned Special Judge, Karimganj with the following conditions that:-

(i) the petitioner shall appear before the learned Trial Court as and when Page No.# 4/4 so required by the learned Trial Court and shall co-operate in his trial;

(ii) the petitioner shall not leave the jurisdiction of the learned Trial Court without prior leave of the learned Trial Court;

(iii) the petitioner shall not directly or indirectly make any inducement, threat or promise to any of the listed witnesses or any other persons who may be acquainted with the facts of the case so as to dissuade such person from deposing against the petitioner in the pending trial against him; and

(iv) the learned Trial Court may impose any additional condition if it deems fit to do so for the sake of fair trial against the petitioner. With the above observations, this bail application is hereby disposed of.

JUDGE Comparing Assistant

Page No.# 1/4 GAHC010279612023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4510/2023 KAMLESH YADAV @ KAMLESH PANCHAM YADAV S/O PANCHAM RAMESH YADAV, R/O ADARSH MANAV SEVA SAMITI, P.S.- KURAR CHOWKI, DIST.- MALAD EAST, MAHARASTRA. VERSUS THE STATE OF ASSAM TO BE REP. BY THE PUBLIC PROSECUTOR. Advocate for the Petitioner : MR. M A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA