Gauhati High Court
Page No.# 1/18 vs The State Of Assam on 28 November, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/18
GAHC010162852024
2024:GAU-AS:11793
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2438/2024
DANIEL KITHAREE
S/O P. LOLI, VILL- SHAJOUBA, P.S.-TADUBI, DIST- SENAPATI, MANIPUR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. H.R. Choudhury, Advocate.
For State respondent : Mr. D.P. Goswami, APP.
Date of hearing : 20.11.2024, 28.11.2024.
Date of order : 28.11.2024
ORDER
(C.A.V.)
Heard Mr. H.R. Choudhury, learned counsel for the petitioner.
Page No.# 2/18
Also heard Mr. D.P. Goswami, learned APP appearing for the State.
2) The petitioner, who was arrested on 26.10.2022 in connection
with NDPS Case No. 18/2023 (arising out of Dillai P.S. Case No. 37/2022) under
section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act for short), has prayed for bail under section 483 of the BNSS.
3) The learned counsel for the petitioner has submitted that as per
the FIR, the petitioner is the driver of an Innova Car, bearing registration no. NL-
01-CA-0194. It was also submitted that on 26.10.2022, the police personnel had
intercepted the said vehicle on the Highway while carrying passengers and
during search in the said vehicle, 55 (fifty five) numbers of soap boxes
containing 690.13 grams of suspected heroin was allegedly recovered from
below the mat inside the car and Dillai P.S. Case No. 37/2022 under section
21(c) of the NDPS Act was registered. It was submitted according to the charge-
sheet no. 4/2023, dated 28.02.2023, the report of the FSL/ Chemical Examiner
disclosed that the seized article was found positive for heroin. Accordingly, after
submission of the charge-sheet, the learned Trial Court had framed charge,
against the petitioner under section 21(c) read with section 29 of the NDPS Act
vide order dated 10.06.2023.
4) The learned counsel for the petitioner has submitted that the
petitioner, having been arrested on 26.10.2022, is in custody for last 763 days.
It is also submitted that out of 15 (fifteen) listed witnesses, only 8 (eight)
witnesses have been examined and accordingly, it has been submitted that
there is no likelihood of an early conclusion of trial. Moreover, it has been
submitted that 8 (eight) accused were charge-sheeted. However, the accused
no. 6, 7 and 8 were discharged. Accordingly, it is submitted that as there is no
chance of an early trial, the petitioner may be granted bail on such stringent
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conditions as the Court may so deem proper.
5) It has been submitted that as this Bench had granted bail to
accused no. 8 vide order dated 22.02.2023, passed in B.A. 46/2023, this bail
application has been listed before the same Bench.
6) In support of his submission, the following cases have been
cited, viz., (i) Rabi Prakash v. State of Odisha, 2023 Live Law (SC) 533 , (ii)
Mohd. Muslim @ Hussain vs. State (NCT of Delhi), 2023 Live Law (SC) 280 , (iii)
Shariful Islam @ Sarif v. The State of West Bengal, order dated 04.08.2022,
passed by the Supreme Court of India (the printout from Indian Kanoon, as
provided, does not disclose the case number) , (iv) Nitish Adhikary @ Bapan v.
The State of West Bengal, order dated 01.08.2022, passed by the Supreme
Court of India, (the printout from Indian Kanoon, as provided, does not disclose
the complete case number), (v), Mohammad Salman Hanif Shaikh v. The State
of Gujarat, order dated 22.08.2022, passed by the Supreme Court of India in
SLP (Crl.) No(s). 5530/2022, (vi) Muskan v. State of Rajasthan, order dated
22.10.2022, passed by the Rajasthan High Court in S.B. Crl. Misc. B.A. No.
13082/2024.
7) Per contra, the learned APP has submitted that commercial
quantity of contraband psychotropic substance was being trafficked for
monetary benefit, for which the petitioner is not entitled to bail.
8) Considered the material available on record. It may be stated
that the scanned copy of the case records of B.A 4258/2023 were called for. As
the case diary was voluminous, it has taken some time to peruse the same for
considering this bail application.
9) Considered the submissions made by the learned counsel for the
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petitioner as well as the learned APP for the State. Also carefully perused the
cases cited by the learned counsel for the petitioner.
10) At the outset it is deemed appropriate to refer to the provisions of
Section 479 of the BNSS, 2023, which is quoted below:
479. Maximum period for which undertrial prisoner can be detained.- (1) Where a
person has, during the period of investigation, inquiry or trial under this Sanhita of
an offence under any law (not being an offence for which the punishment of death
or life imprisonment has been specified as one of the punishments under that law)
undergone detention for a period extending up to one-half of the maximum period
of imprisonment specified for that offence under that law, he shall be released by
the Court on bail:
Provided that where such person is a first-time offender (who has never been
convicted of any offence in the past) he shall be released on bond by the Court, if
he has undergone detention for the period extending up to one-third of the
maximum period of imprisonment specified for such offence under that law:
Provided further that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of such
person for a period longer than one-half of the said period or release him on bail
bond instead of his bond:
Provided also that no such person shall in any case be detained during the
period of investigation, inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that law.
Explanation.- In computing the period of detention under this section for
granting bail, the period of detention passed due to delay in proceeding caused by
the accused shall be excluded.
(2) Notwithstanding anything in sub-section (1), and subject to the third proviso
thereof, where an investigation, inquiry or trial in more than one offence or in
multiple cases are pending against a person, he shall not be released on bail by the
Court.
(3) The Superintendent of jail, where the accused person is detained, on
completion of one-half or one-third of the period mentioned in sub-section (1), as
the case may be, shall forthwith make an application in writing to the Court to
proceed under sub-section (1) for the release of such person on bail.
11) In this case, by order dated 06.11.2023, the learned Trial Court
had framed and explained charges to the accused persons under sections 8(c),
Page No.# 5/1820(b)(ii)(C), 21(C), 22(c) and 29 of the NDPS Act. The punishment prescribed
under each of the said sections is not less than 10 (ten) years but which may
extend to 20 (twenty) years and shall also be liable to fine which shall not be
less than Rs.1.00 Lakh but which may extend to Rs.2.00 Lakh.
12) In the said context, reference may be made to the relevant
observation of the Supreme Court of India in the case of Satender Kumar Antil
v. Central Bureau of investigation, (2022) 0 Supreme(SC) 588: AIR 2022 SC
3386, which is quoted below:
“Where undertrial accused is charged with an offence(s) under the Act
punishable with minimum imprisonment of ten years and a minimum
fine of Rupees one lakh, such an under-trial shall be released on bail if
he has been in jail for not less than five years provided he furnishes
bail in the sum of Rupees one lakh with two sureties for like amount .”
13) In light of the said judgment of the Supreme Court of India in the
case of Satender Kumar Antil (supra), with all due respect to the decision in the
case Shariful Islam @ Sharif (supra), Nitish Adhilkary @ Bapan (supra),
Mohammad Salman Hanif Shaikh (supra) and Muskan (supra), cited by the
learned counsel for the petitioner, the law, as laid down by the Supreme Court
of India, in the case of Satender Kumar Antil (supra), is not seen to have been
expressly or impliedly in any manner. Hence, as principles of law was not laid
down in the cases cited by the learned counsel for the petitioner, the Court is of
the considered view that in those cases bail was granted on the basis of the
facts of those cases.
14) The learned counsel for the petitioner has submitted that as right
to speedy trial is one of facets of Article 21 of the Constitution of India, and
delay in completion of trial would entitle the petitioner for bail. In the said
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context, it has been already been mentioned hereinbefore that by order dated
10.06.2023, charges were framed and explained by the learned trial Court.
Moreover, it has not even been stated in this bail application that the accused
persons, collectively, have not contributed to the delay in the progress of the
trial. Under such circumstances, it would be appropriate to refer to the case of
Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra, (2013) 0
Supreme (SC) 252. Paragraphs 18 to 21, thereof, are quoted below:
18. At this stage, we think it apposite to advert to another aspect which is
sometimes highlighted. It is quite common that a contention is canvassed in certain
cases that unless there is a speedy trial, the concept of fair trial is totally crucified.
Recently, in Mohd. Hussain @ Julfikar Ali v. State (Government of NCT of Delhi),
(2012) 9 SCC 408, a three-Judge Bench, after referring to the pronouncements in
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578: (2002) 0
Supreme(SC) 499, Zahira Habibulla H. Shekh and another v. State of Gujarat and
others, (2004) 4 SCC 158, Satyajit Banerjee & Ors. v. State of West Bengal & Ors.,
(2005) 1 SCC 115, pointed out the subtle distinction between the two in the
following manner:-
“40 “Speedy trial” and “fair trial” to a person accused of a crime are integral
part of Article 21. There is, however, qualitative difference between the right
to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of
fair trial, deprivation of the right to speedy trial does not per se prejudice the
accused in defending himself. The right to speedy trial is in its very nature
relative. It depends upon diverse circumstances. Each case of delay in
conclusion of a criminal trial has to be seen in the facts and circumstances of
such case. Mere lapse of several years since the commencement of
prosecution by itself may not justify the discontinuance of prosecution or
dismissal of indictment. The factors concerning the accused’s right to speedy
trial have to be weighed vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures rights to an
accused but it does not preclude the rights of public justice. The nature and
gravity of crime, persons involved, social impact and societal needs must be
weighed along with the right of the accused to speedy trial and if the balance
tilts in favour of the former the long delay in conclusion of criminal trial should
not operate against the continuation of prosecution and if the right of the
accused in the facts and circumstances of the case and exigencies of situation
Page No.# 7/18tilts the balance in his favour, the prosecution may be brought to an end.”
[Emphasis added]
19. It is to be kept in mind that on one hand, the right of the accused is to
have a speedy trial and on the other, the quashment of the indictment or the
acquittal or refusal for sending the matter for re- trial has to be weighed, regard
being had to the impact of the crime on the society and the confidence of the
people in the judicial system. There cannot be a mechanical approach. From the
principles laid down in many an authority of this Court, it is clear as crystal that no
time limit can be stipulated for disposal of the criminal trial. The delay caused has
to be weighed on the factual score, regard being had to the nature of the offence
and the concept of social justice and the cry of the collective. In the case at hand,
the appellant has been charge-sheeted under the Prevention of Corruption Act,
1988 for disproportionate assets. The said Act has a purpose to serve. The
Parliament intended to eradicate corruption and provide deterrent punishment
when criminal culpability is proven. The intendment of the legislature has an
immense social relevance. In the present day scenario, corruption has been treated
to have the potentiality of corroding the marrows of the economy. There are cases
where the amount is small and in certain cases, it is extremely high. The gravity of
the offence in such a case, in our considered opinion, is not to be adjudged on the
bedrock of the quantum of bribe. An attitude to abuse the official position to
extend favour in lieu of benefit is a crime against the collective and an anathema to
the basic tenet of democracy, for it erodes the faith of the people in the system. It
creates an incurable concavity in the Rule of Law. Be it noted, system of good
governance is founded on collective faith in the institutions. If corrosions are
allowed to continue by giving allowance to quash the proceedings in corruption
cases solely because of delay without scrutinizing other relevant factors, a time
may come when the unscrupulous people would foster and garner the tendency to
pave the path of anarchism.
20. It can be stated without any fear of contradiction that corruption is not to
be judged by degree, for corruption mothers disorder, destroys societal will to
progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory
of the institutions, paralyses the economic health of a country, corrodes the sense
of civility and mars the marrows of governance. It is worth noting that immoral
acquisition of wealth destroys the energy of the people believing in honesty, and
history records with agony how they have suffered. The only redeeming fact is that
collective sensibility respects such suffering as it is in consonance with the
constitutional morality. Therefore, the relief for quashing of a trial under the 1988
Act has to be considered in the above backdrop.
21. It is perceivable that delay has occurred due to dilatory tactics adopted by
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the accused, laxity on the part of the prosecution and faults on the part of the
system, i.e., to keep the court vacant. It is also interesting to note that though
there was no order directing stay of the proceedings before the trial court, yet at
the instance of the accused, adjournments were sought. After the High Court
clarified the position, the accused, by exhibition of inherent proclivity, sought
adjournment and filed miscellaneous applications for prolonging the trial, possibly
harbouring the notion that asking for adjournment is a right of the accused and
filing applications is his unexceptional legal right. When we say so, we may not be
understood to have said that the accused is debarred in law to file applications, but
when delay is caused on the said score, he cannot advance a plea that the delay in
trial has caused colossal hardship and agony warranting quashment of the entire
criminal proceeding. In the present case, as has been stated earlier, the accused,
as alleged, had acquired assets worth Rs.33.44 lacs. The value of the said amount
at the time of launching of the prosecution has to be kept in mind. It can be stated
with absolute assurance that the tendency to abuse the official position has spread
like an epidemic and has shown its propensity making the collective to believe that
unless bribe is given, the work may not be done. To put it differently, giving bribe,
whether in cash or in kind, may become the “mantra” of the people. We may
hasten to add, some citizens do protest but the said protest may not inspire others
to follow the path of sacredness of boldness and sacrosanctity of courage. Many
may try to deviate. This deviation is against the social and national interest. Thus,
we are disposed to think that the balance to continue the proceeding against the
accused-appellants tilts in favour of the prosecution and, hence, we are not
inclined to exercise the jurisdiction under Article 32 of the Constitution to quash the
proceedings. However, the learned Special Judge is directed to dispose of the trial
by the end of December, 2013 positively.
15) The Court is inclined to take note of the observations of the
Supreme Court of India in the case of Hira Singh & Anr. v. Union of India & Anr.,
(2020) 0 Supreme(SC) 320, decided by a 3-Judge Bench, which is extracted
below:-
8.5. The problem of drug addicts is international and the mafia is working
throughout the world. It is a crime against the society and it has to be dealt with
iron hands. Use of drugs by the young people in India has increased. The drugs are
being used for weakening of the nation. During the British regime control was kept
on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium
Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time
Page No.# 9/18and the development in the field of illicit drug traffic and during abuse at national
and international level, many deficiencies in the existing laws have come to notice.
Therefore, in order to remove such deficiencies and difficulties, there was urgent
need for the enactment of a comprehensive legislation on Narcotic Drugs and
Psychotropic Substances, which led to enactment of NDPS Act. As observed herein
above, the Act is a special law and has a laudable purpose to serve and is intended
to combat the menace otherwise bent upon destroying the public health and
national health. The guilty must be in and the innocent ones must be out. The
punishment part in drug trafficking is an important one but its preventive part is
more important. Therefore, prevention of illicit traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent
illicit traffic rather than punish after the offence was committed. Therefore, the
Courts will have to safeguard the life and liberty of the innocent persons.
Therefore, the provisions of NDPS Act are required to be interpreted keeping in
mind the object and purpose of NDPS Act; impact on the society as a whole and
the Act is required to be interpreted literally and not liberally which may ultimately
frustrate the object, purpose and preamble of the Act. Therefore, the interpretation
of the relevant provisions of the statute canvassed on behalf of the accused and
the intervener that quantity of neutral substance(s) is not to be taken into
consideration and it is only actual content of the weight of the offending drug,
which is relevant for the purpose of determining whether it would constitute “small
quantity or commercial quantity”, cannot be accepted.
16) In the case of P. Ramachandra Rao (supra), a 7- Judge Bench of
the Supreme Court of India had held as follows:-
29. For all the foregoing reasons, we are of the opinion that in Common
Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and
(II), the Court could not have prescribed periods of limitation beyond which the
trial of a criminal case or a criminal proceeding cannot continue and must
mandatorily be closed followed by an order acquitting or discharging the accused.
In conclusion we hold:-
(1) The dictum in A.R. Antulay’s case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and
expounding the right to speedy trial laid down as guidelines in A.R. Antulay’s
case, adequately take care of right to speedy trial. We uphold and re-affirm
the said propositions.
(3) The guidelines laid down in A.R. Antulay’s case are not exhaustive but
only illustrative. They are not intended to operate as hard and fast rules or to
be applied like a strait-jacket formula. Their applicability would depend on the
Page No.# 10/18fact-situation of each case. It is difficult to foresee all situations and no
generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or
prescribe an outer limit for conclusion of all criminal proceedings. The time-
limits or bars of limitation prescribed in the several directions made in
Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not
have been so prescribed or drawn and are not good law. The criminal courts
are not obliged to terminate trial or criminal proceedings merely on account of
lapse of time, as prescribed by the directions made in Common Cause Case
(I), Raj Deo Sharma case (I) and (II). At the most the periods of time
prescribed in those decisions can be taken by the courts seized of the trial or
proceedings to act as reminders when they may be persuaded to apply their
judicial mind to the facts and circumstances of the case before them and
determine by taking into consideration the several relevant factors as pointed
out in A.R. Antulay’s case and decide whether the trial or proceedings have
become so inordinately delayed as to be called oppressive and unwarranted.
Such time limits cannot and will not by themselves be treated by any Court as
a bar to further continuance of the trial or proceedings and as mandatorily
obliging the court to terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those
under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate
the right to speedy trial. A watchful and diligent trial judge can prove to be
better protector of such right than any guidelines. In appropriate cases
jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and
227 of Constitution can be invoked seeking appropriate relief or suitable
directions.
(6) This is an appropriate occasion to remind the Union of India and the
State Governments of their constitutional obligation to strengthen the
judiciary-quantitatively and qualitatively-by providing requisite funds,
manpower and infrastructure. We hope and trust that the Governments shall
act.
17) We may also refer to the decision of the Supreme Court of India
in the case of Tarun Kumar v. Assistant Director, Directorate of Enforcement,
(2023) 0 Supreme(SC) 1163, wherein the Supreme Court of India, in the
context of Prevention of Money Laundering Act, has observed as follows:-
20. It is also difficult to countenance the submission of learned Counsel Mr.
Luthra that the investigation qua the appellant is complete and the trial of the
Page No.# 11/18cases likely to take long time. According to him the appellant ought not to be
incarcerated indefinitely merely because the investigation is kept open with regard
to the other accused. In this regard, it may be noted that the appellant has not
been able to overcome the threshold stipulations contemplated in Section 45
namely he has failed to prima facie prove that he is not guilty of the alleged
offence and is not likely to commit any offence while on bail. It cannot be gainsaid
that the burden of proof lies on the accused for the purpose of the condition set
out in the Section 45 that he is not guilty of such offence. Of course, such
discharge of burden could be on the probabilities, nonetheless in the instant case
there being sufficient material on record adduced by the respondent showing the
thick involvement of the appellant in the alleged offence of money laundering
under Section 3 of the said Act, the Court is not inclined to grant bail to the
appellant.
21. The apprehension of the learned counsel for the appellant that the trial is
likely to take long time and the appellant would be incarcerated for indefinite
period, is also not well founded in view of the observations made by this Court in
case of Vijay Madanlal Choudhary & Ors. v. Union of India & Ors., 2022 SCC OnLine
929. On the application of Section 436A of the Code of Criminal Procedure, 1973, it
has been categorically held therein that:-
“419. Section 436A of the 1973 Code, is a wholesome beneficial provision,
which is for effectuating the right of speedy trial guaranteed by Article 21 of
the Constitution and which merely specifies the outer limits within which the
trial is expected to be concluded, failing which, the accused ought not to be
detained further. Indeed, Section 436A of the 1973 Code also contemplates
that the relief under this provision cannot be granted mechanically. It is still
within the discretion of the Court, unlike the default bail under Section 167 of
the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is
required to consider the relief on case-to-case basis. As the proviso therein
itself recognises that, in a given case, the detention can be continued by the
Court even longer than one-half of the period, for which, reasons are to be
recorded by it in writing and also by imposing such terms and conditions so as
to ensure that after release, the accused makes himself/herself available for
expeditious completion of the trial.”
18) From the materials available on record, it is revealed that in this
case a huge seizure of commercial quantity of contraband narcotic drugs i.e.
heroin weighing 690.13 grams was seized, which has been tested positive for
heroin. Therefore, while considering the prayer for bail, the Court is unable to
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record that the petitioner is not guilty of committing the offence which is a
requirement of the Provisions of Section 37 of the NDPS Act.
19) In the said context, it would be relevant to refer to the case of
Mohd. Muslim @ Hussain v. State (NCT of Delhi), S.L.P.(Crl.) No. 915/2023,
decided by 2- Judge Bench and reported in (2023) 0 Supreme(SC) 289. In the
said case, the Supreme Court of India had referred to the case of Union of India
v. Rattan Malik, (2009) 2 SCC 624: (2009) 0 Supreme(SC) 95. Paragraphs 14, 15
and 16 as extracted from the citation of (2009) 0 Supreme(SC) 95 is quoted
below:-
14. We may, however, hasten to add that while considering an application for
bail with reference to Section 37 of the NDPS Act, the Court is not called upon to
record a finding of ‘not guilty’. At this stage, it is neither necessary nor desirable to
weigh the evidence meticulously to arrive at a positive finding as to whether or not
the accused has committed offence under the NDPS Act. What is to be seen is
whether there is reasonable ground for believing that the accused is not guilty of
the offence(s) he is charged with and further that he is not likely to commit an
offence under the said Act while on bail. The satisfaction of the Court about the
existence of the said twin conditions is for a limited purpose and is confined to the
question of releasing the accused on bail.
15. Bearing in mind the above broad principles, we may now consider the
merits of the present appeal. It is evident from the afore-extracted paragraph that
the circumstances which have weighed with the learned Judge to conclude that it
was a fit case for grant of bail are: (i) that nothing has been found from the
possession of the respondent; (ii) he is in jail for the last three years and (iii) that
there is no chance of his appeal being heard within a period of seven years. In our
opinion, the stated circumstances may be relevant for grant of bail in matters
arising out of conviction under the Indian Penal Code, 1860 etc. but are not
sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of
sub-section (1) of Section 37 of the NDPS Act. Merely because, according to the
Ld. Judge, nothing was found from the possession of the respondent, it could not
be said at this stage that the respondent was not guilty of the offences for which
he had been charged and convicted. We find no substance in the argument of
learned counsel for the respondent that the observation of the learned Judge to
the effect that “nothing has been found from his possession” by itself shows
application of mind by the Ld. Judge tantamounting to “satisfaction” within the
Page No.# 13/18meaning of the said provision. It seems that the provisions of the NDPS Act and
more particularly Section 37 were not brought to the notice of the learned Judge.
16. Thus, in our opinion, the impugned order having been passed ignoring
the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained.
Accordingly, the appeal is allowed and the matter is remitted back to the High
Court for fresh consideration of the application filed by the respondent for
suspension of sentence and for granting of bail, keeping in view the parameters of
Section 37 of the NDPS Act, enumerated above. We further direct that the bail
application shall be taken up for consideration only after the respondent surrenders
to custody. The respondent is directed to surrender to custody within two weeks of
the date of this order, failing which the High Court will take appropriate steps for
his arrest.
20) In this case, the learned APP for the respondent has been able to
prima facie satisfy the Court that there are sufficient materials in the charge-
sheet, which allegedly discloses that while in the process of transporting
commercial quantity of heroin in the State, the petitioner was caught with
conscious possession of the commercial quantity of heroin.
21) In the said context, reference can also be made to the decision of
the Supreme Court of India in the case of Gurwinder Singh v. State of Punjab &
Anr., (2024) 0 Supreme(SC) 104, where the offence for which the appellant
therein was arrested was under Unlawful Activities (Prevention) Act, 1967. In
the said case, the prayer for bail was rejected as it was a serious case and the
requirement was to consider the provisions of section 43(D)(5) of the said Act
and it was further held that delay in trial pertaining to grave offence cannot be
used for granting bail.
22) Accordingly, in light of the discussions on the point no. (a), the
Court is inclined to hold that despite being in custody for last 763 days [i.e. 2
(two) years 1 (one) month 1 (one) day], since the date of his arrest, and
despite the fact that time estimated time by when the trial may be over cannot
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be said at this premature stage, the petitioner is not yet become entitled to be
enlarged on bail.
23) In the present case, the contraband substances recovered are of
commercial quantity and therefore, the petitioner will have to satisfy the twin
requirement of section 37 of the NDPS Act. Unless the twin requirements are
fulfilled, the petitioner will not be entitled to be allowed to go on bail. In the
said context, we have refer to the decision of the Supreme Court of India in the
case of Union of India v. Ajay Kumar Singh @ Pappu, (2023) 0 Supreme(SC)
285. Paragraphs 14 to 17 thereof are quoted below:-
14. This apart, it is noticed that the High Court, in passing the impugned
order of bail, had lost sight of Section 37 of the NDPS Act, which, inter-alia,
provides that no person accused of an offence involving commercial quantity shall
be released on bail unless the twin conditions laid down therein are satisfied,
namely (i) the public prosecutor has been given an opportunity to oppose the bail
application and (ii) the court is satisfied that there are reasonable grounds for
believing that he is not guilty of such an offence and that he is not likely to commit
any such offence while on bail.
15. For the sake of convenience Section 37(1) is reproduced herein-below:
37. Offences to be cognizable and non-bailable:
(1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974):
(a) every offence punishable under this Act shall be cognizable.
(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.
(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.”
16. In view of the above provisions, it is implicit that no person accused of an
offence involving trade in commercial quantity of narcotics is liable to be released
on bail unless the court is satisfied that there are reasonable grounds for believing
Page No.# 15/18
that he is not guilty of such an offence and that he is not likely to commit any
offence while on bail.
17. The quantity of “ganja” recovered is admittedly of commercial quantity.
The High Court has not recorded any finding that the respondent-accused is not
prima-facie guilty of the offence alleged and that he is not likely to commit the
same offence when enlarged on bail rather his antecedents are indicative that he is
a regular offender. In the absence of recording of such satisfaction by the court, we
are of the opinion that the High Court manifestly erred in enlarging the respondent-
accused on bail.
24) In the case of Narcotics Control Bureau v. Mohit Aggarwal, AIR
2022 SC 3444, a 3-Judge Bench of the Supreme Court of India had observed as
follows:-
11. It is evident from a plain reading of the non-obstante clause inserted in
sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that
there are certain restrictions placed on the power of the Court when granting bail
to a person accused of having committed an offence under the NDPS Act. Not only
are the limitations imposed under Section 439 of the Code of Criminal Procedure,
1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1)
of Section 37 are also to be factored in. The conditions imposed in sub- section (1)
of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to
oppose the application moved by an accused person for release and (ii) if such an
application is opposed, then the Court must be satisfied that there are reasonable
grounds for believing that the person accused is not guilty of such an offence.
Additionally, the Court must be satisfied that the accused person is unlikely to
commit any offence while on bail.
12. The expression “reasonable grounds” has come up for discussion in several
rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira,
(2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it
has been held thus:-
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits. Apart from the grant of opportunity to the
Public Prosecutor, the other twin conditions which really have relevance so far
as the present accused-respondent is concerned, are: the satisfaction of the
court that there are reasonable grounds for believing that the accused is not
guilty of the alleged offence and that he is not likely to commit any offence
while on bail. The conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being not guilty has to be
Page No.# 16/18based on reasonable grounds. The expression “reasonable grounds” means
something more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the provision requires
existence of such facts and circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the alleged offence.
[emphasis added]
13. The expression ‘reasonable ground’ came up for discussion in State of
Kerala & Ors. v. Rajesh and others, (2020) 12 SCC 122 and this Court has observed
as below:
13. The expression “reasonable grounds” means something more than prima
facie grounds. It contemplates substantial probable causes for believing that
the accused is not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on hand, the High
Court seems to have completely overlooked the underlying object of Section
37 that in addition to the limitations provided under the CrPC, or any other
law for the time being in force, regulating the grant of bail, its liberal approach
in the matter of bail under the NDPS Act is indeed uncalled for.” [emphasis
added]
14. To sum up, the expression “reasonable grounds” used in clause (b) of
Sub Section (1) of Section 37 would mean credible, plausible and grounds for
the Court to believe that the accused person is not guilty of the alleged
offence. For arriving at any such conclusion, such facts and circumstances
must exist in a case that can persuade the Court to believe that the accused
person would not have committed such an offence. Dove-tailed with the
aforesaid satisfaction is an additional consideration that the accused person is
unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in
the context of the Section 37 of the Act, the Court is not required to record a
finding that the accused person is not guilty. The Court is also not expected to
weigh the evidence for arriving at a finding as to whether the accused has
committed an offence under the NDPS Act or not. The entire exercise that the
Court is expected to undertake at this stage is for the limited purpose of
releasing him on bail. Thus, the focus is on the availability of reasonable
grounds for believing that the accused is not guilty of the offences that he has
been charged with and he is unlikely to commit an offence under the Act
while on bail.
* * *
Page No.# 17/18
17. Even dehors the confessional statement of the respondent and the other
co-accused recorded under Section 67 of the NDPS Act, which were
subsequently retracted by them, the other circumstantial evidence brought on
record by the appellant-NCB ought to have dissuaded the High Court from
exercising its discretion in favour of the respondent and concluding that there
were reasonable grounds to justify that he was not guilty of such an offence
under the NDPS Act. We are not persuaded by the submission made by
learned counsel for the respondent and the observation made in the
impugned order that since nothing was found from the possession of the
respondent, he is not guilty of the offence for which he has been charged.
Such an assumption would be premature at this stage.
25) Thus, in light of the discussions above, the Court is inclined to
hold that before the petitioner can be enlarged on bail, he will have to satisfy
the twin requirement of section 37 of the NDPS Act, which he has not been able
to.
26) Before parting with the records, it may be stated that the below
mentioned newspaper report was published in the Sentinel, a newspaper
published from Guwahati, Assam, in its November, 19, 2024 edition, which as
extracted from the internet site of “Sentinel Digital Desk”, reads as follows:-
GUWAHATI: Despite the ongoing crusade against the drug menace in Assam,
addiction among the teenagers is on the rise in the state.
According to a survey conducted in 2011, the state had an estimated 3.50 lakh
teenage drug addicts. And the number has increased to around five lakh now. With
the increase in the number of teenaged drug addicts, the number of rehabilitation
centres in the state is also rising fast. According to sources, in 2021 the state had
around 100 rehabilitation centres, and the number has increased to around 300
now. Most of the rehabilitation centres are run by private parties.
The seizure of big assignments of drugs in the bordering districts in Assam is
almost a regular affair. At the same time, the seizure of drugs leading to the arrest
of peddlers from every nook and corner of the state is also a daily affair.
According to official sources, the police seized 7,206 kg of heroin, 445 kg of
brown sugar, 60 lakh yaba tablets, and other drugs from 2016 to July 2024. The
police arrested around 20,000 peddlers and dealers during this period.
A police official said, “We seize drugs in huge quantities, leading to arrests
Page No.# 18/18almost every day. Despite that, the menace is not on the wane. We seize drugs and
arrest peddlers from lanes and bye-lanes every day. The small-time peddlers are
the ones who have been supplying drugs to the teenagers, including school-goers
and school dropouts, in the State.”
The police officer further said, “What is significant is that almost 90 percent of
the small-time drug peddlers, who have been out to addict the young generation,
are from a particular community. These people have chosen this as one of their
ventures to mint money. Women from the particular community are also actively
engaged in this notorious business.”
The police officer also said, “The government has been waging its war against
drugs from its end. At the same time, it augurs well for the parents to keep an eye
on what their children do.”
27) The above, being a news article, the Court cannot comment about
its correctness. Nonetheless, the Court is of the considered opinion that even if
a part of the said report is true, then time has come that the offences of
transporting of drugs and narcotic substances, drug peddling, etc., which is
adversely affect the society at large and destroying the future of a large number
of youths, must be treated to be a separate and distinct class of offence and to
follow the dictum of the case of Satender Kumar Antil (supra), as quoted
hereinbefore.
28) In light of the discussions above, this bail application is rejected.
JUDGE
Comparing Assistant