Bilal Uddin v. The State of Assam

ORDER Date : 27.11.2024

Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also head Mr. D. P. Goswami, learned Additional Public Prosecutor for the State Page No.# 2/9 respondent.

¶2This is an application under Section 483 of BNSS, 2023, praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (NDPS) Case No. 126/2022, pending before the court of learned Sessions Judge, Karimganj, arising out of Karimganj P.S. Case No. 510/2022, under Section 22(c) of NDPS Act, 1985.

¶3Scanned copy of the case record has already been received. Perused the same. Heard both sides.

¶4It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been recovered from his conscious possession. He further submitted that the accused got arrested in connection with this case on 26.08.2022 and since then, he is in custody. The Charge-Sheet of the case was filed on 30.10.2022 and the charge was accordingly framed on 22.02.2023 and since then, the case is fixed for evidence. More so, till 06.09.2024, only 4 (four) numbers of witnesses could be examined by the prosecution. He accordingly submitted that the PW-1 was examined on

06.06.2023, PW-2 was examined on 20.06.2023, PW-3 was examined on

18.07.2023 and PW-4 was examined after 13 months of the examination of PW-3, i.e. on 06.09.2024. The accused is behind the bar for last 2 (two) years 10

(ten) months & 1 (one) day, i.e. 824 days, but till date, the prosecution could examine only 4 (four) numbers of witnesses out of total 11 (eleven) numbers of witnesses. Further, the next date of evidence is fixed on 10.12.2024, i.e. the date is fixed after 3 (three) months from the last date of evidence. Mr. Page No.# 3/9 Choudhury, accordingly, submitted that there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the prosecution and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. He further submitted that the earlier bail application of the present petitioner was rejected by this Court vide order dated 04.03.2024 wherein the plea of non-compliance of Section 50 of NDPS Act was taken by the petitioner, but the present petition is filed to consider his bail prayer only on the ground of long incarceration.

¶5In support of his submission, Mr. Choudhury, learned counsel for the petitioner, further relied on the following decisions:

(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533

(ii) Citta Biswas @ Subash Vs. The State of West Bengal [Criminal Appeal No (s) 245 of 2020 (Decided on

07.02.2022)]

(iii) Nitish Adhikar @ Bapan Vs. The State of West Bengal [SLP

(CRI) 5769/2022 (Decided on 01.08.2022)]

(iv) Shariful Islam @ Sharif Vs. The State of West Bengal [SLP(Crl) 4173/2022 (Decided on 04.08.2022)]

(v) Mohammed Salman Hanif Shaikh Vs. The State of Gujrat [SLP(Crl) No. 5530/2022 (Decided on 22.08.2022)] Page No.# 4/9

(vi) Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh [SLP(Crl) No. 6690/2022 (Decided on 25.01.2023]

(vii) Anjan Nath Vs. the State of Assam [SLP (CRL) No. 9860/2023 (Decided on 17.10.2023)]

(viii) Mamata Begum @ Bewa @ Beguni @ Mamata Bibi Vs. The State of West Bengal [SLP (Crl) 68/2024 (decided on

29.01.2024)]

(ix) Ahmedur Rahman Barbhuiya Vs. the State of Assam [Bail Appln. No. 2802/2024 (Decided on 17.09.2024)]

¶6Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard that the contraband was recovered from the conscious possession of the present accused/petitioner and there are sufficient incriminating materials in the Case Diary against the present accused/petitioner showing his direct involvement in the alleged offence. He further submitted that as the case is of commercial quantity, rigor of Section 37 of NDPS Act will follow. He further submitted that in the case of Narcotics Control Bureau Vs. Mohit Agarwal [Criminal Appeal Nos. 1001-1002 of 2022, arising out of SLP (Crl.) No. 6128 of 2021], the Hon'ble Apex Court has held that long incarceration or delay in disposal only cannot be the sole ground for entertaining the bail application. Accordingly, he submitted that this is a case of commercial in nature wherein huge quantity of contraband is alleged to have been recovered from the possession of the present accused/ petitioner and hence, his prayer may not be Page No.# 5/9 considered only on the ground of period of incarceration.

¶7After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the case record and the annexures filed along with the petition.

¶8As per the allegation, information was received by the Officer-In-Charge that based on reliable source, a vehicle (e rickshow) was intercepted near Kalibari Bisharjan Ghat, Karimganj by BSF personnel and on the basis of the said information, the S.I. of Karimganj Police Station, along with other Police Officials, arrived at the place of occurrence. During search, 10 packets containing suspected Yuba Tablets, one black polythene and one vivo mobile phone was recovered from the conscious possession of the present accused/petitioner and accordingly, observing all formalities, those were seized in presence of the witnesses. However, it is the case of the petitioner that he was arrested by the police only on suspicion and the contrabands were not recovered from his conscious possession.

¶9It is a fact that the present accused/petitioner was arrested in connection with this case on 26.08.2022 with the allegation of recovery of commercial quantity of contraband from his possession and since then, the accused/petitioner is in custody. After his arrest and on completion of investigation, police find prima facie materials against him and accordingly filed the Charge-Sheet against him.

¶10Thus, it is seen that the case is of commercial quantity and hence, the Page No.# 6/9 rigor of Section 37 NDPS Act will follow.

¶11For ready reference, Section 37 NDPS Act is extracted hereinbelow:

"37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

¶12Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail.

¶13But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for last 824 days from the date of his arrest and till then, the prosecution has been able to examine only 4 (four) witnesses out of 11 (eleven) numbers of witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

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¶14In the case of Rabi Prakash (supra), as relied by the learned counsel for the petitioner, the Apex Court has granted bail to the accused with a view that "the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)9ii) of the NDPS Act."

¶15In the case of Chitta Biswas @ Subash (supra) also, the bail was granted by the Apex Court considering the long period of incarceration and also considering the fact that out of 10 (ten) numbers of witnesses, only 4 (four) witnesses were examined by the prosecution.

¶16Again, in the case of Nitish Adhikary @ Bapan (supra), considering the period of detention of 1 year 7 months, the bail was granted considering that the prosecution could examine only one witness and also considering that the case is at the preliminary stage of trial.

¶17Further, in the case of Shariful Islam @ Sharif (supra) also, the Apex Court had considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted.

¶18The Apex Court in the case of Mohammed Salman Hanif Shaikh (supra) also granted bail to the accused without expressing any views on the merits of the case and only taking into consideration the period of custody.

¶19In the case of Karnail Singh Vs. The State of Odisha [Criminal Page No.# 8/9 Appeal No. 2027/2022, arising out of SLP(Crl) No. 9067/2022 (Decided on 22.11.2022)]as well as in Dheeraj Kumar Shukla (supra) also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.

¶20Same view has been expressed by the Apex Court in the case of Anjan Nath (supra), as relied by the learned counsel for the petitioner.

¶21In the instant case, it is seen that there are some materials available in the Case Diary and on the basis of which, the Investigating Officer has also filed the Charge-Sheet against the present accused/petitioner showing his involvement in the alleged offence. But it is also seen that in spite of filing of the Charge-Sheet in the year 2022, the prosecution could examine only 4 (four) witnesses out of 11 (eleven) numbers of witnesses, though it a fact that the accused/petitioner is behind the bar for more than 2 (two) years 10 (ten) months & 1 (one) day, i.e. 824 days.

¶22In view of above and also considering the observation made by the Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more than 2 (two) years 10 (ten) months & 1 (one) day may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Constitution and, therefore, I am inclined to grant bail to the present accused/petitioner.

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¶23Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees twenty thousand) only with 2 (two) sureties of like amount, one surety has to be a government servant, to the satisfaction of the learned Special Judge, Karimganj, the accused/petitioner, namely, Bilal Uddin, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall make himself available for interrogation by the Investigating Officer as and when required;

(ii) that 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; and

(iii) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Karimganj, without prior permission.

¶24In terms of above, this bail application stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/9 GAHC010196602024 2024:GAU-AS:11761 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2896/2024 BILAL UDDIN S/O MAKADDACH ALI @ MAKADDAS ALI VILL- SUNATILA UTTAR KEOTI, ASALKANDI P.S. PATHERKANDI DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA