Gauhati High Court
Gapendra Das @ Dipak vs The State Of Assam on 29 July, 2024
Page No.# 1/8
GAHC010059102024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./850/2024
GAPENDRA DAS @ DIPAK
S/O GAURANGA DAS
VILL- DUPIRBAND, LALCHERRA,
P.S. DHARMANAGAR
DIST. NORTH TRIPURA, TRIPURA
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A AHMED
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
29.07.2024 Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail to the accused/ petitioner, who has been arrested in connection with Special NDPS Case No. 169/2022, arising out of Bazaricherra P.S. Case No. 210/2022, under Section 21(c)/22(c)/25/29 of NDPS Act, pending in the Court of learned Session Judge, Karimganj.
3. It is submitted by Mr. Ahmed, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way involved in the alleged offence. He is behind the bar since 14.12.2022, i.e. more than 1 year 7 months, but till date, the case is still at the stage of appearance and the trial has not yet commenced. More so, he is a mechanic by profession and the car was with him as it was brought for repairing and when he was driving the said vehicle, the contrabands were alleged to have been recovered from the said vehicle. He has no other criminal antecedents and the case is still at the stage of appearance as one of the accused is still absconding and he is yet to be arrested in connection with this case. Accordingly, it is submitted that there is no possibility of disposal of this case within a short period as the trial has not yet commenced due to absence of one of the co-accused. Thus, he submitted that considering his long period of incarceration, the accused/petitioner may be allowed to go on bail.
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4. In support of his case, Mr. Ahmed further relied on the following decisions of Apex Court:
(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533]
(ii) Chitta Biswas @ Subash Vs. the State of West Bengal [Criminal Appeal No (s) 245 of 2020 (Decided on 07.02.2022)]
(iii) Nitish Adhikary @ 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)]
(vi) Karnail Singh Vs. The State of Odisha [Criminal Appeal No. 2027/2022, arising out of SLP(Crl) No. 9067/2022 (Decided on 22.11.2022)]
(vii) Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh [SLP(Crl) No. 6690/2022 (Decided on 25.01.2023] Page No.# 4/8
(viii) Tapas Mandal Vs. The State of West Bengal [SLP(CRL) No. 8464/2023 (Decided on 14.09. 2023)]
(ix) Man Mandal Vs. The State of West Bengal [SLP (CRL) No. 8656/2023 (Decided on 14.09.2023)]
(x) Anjan Nath Vs. the State of Assam [SLP (CRL) No. 9860/2023 (Decided on 17.10.2023)]
5. Mr. Ahmed further submitted that the Apex Court in the above referred cases has granted bail to the accused considering their long period of incarceration. Furthermore, in the case of Anjan Nath (supra), the Apex Court has granted bail considering the long period of incarceration of more than 1 year and 7 months to the accused, whose bail petition was earlier rejected by this Court in Bail Appln. No. 2022/2023.
6. Mr. Sharma, learned Additional Public Prosecutor, submitted in this regard that there was a delay in taking cognizance of this case as one of the accused, who was charge-sheeted, namely, Kabir Ahmed, was found to be juvenile and hence, his case has to be split up and thereafter on 15.06.2022, the learned Special Judge took cognizance of this case and since 27.06.2022, the Court work was paralyzed due to outbreak of Covid-19 pandemic and in the same time, one of the accused, namely, Kamal Uddin, is still absconding and for which, the case is still at the stage of appearance. But, there is no such Page No.# 5/8 inordinate delay in the case and trial may be commenced immediately after the arrest of the absconder/accused. Mr. Sharma further 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 considered only on the ground of period of incarceration.
7. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and it is seen that the case is still at the stage of appearance as one of the co-accused is still absconding. It also reveals that there are 9 (nine) numbers of witnesses in this case and the trial is not yet commenced due to absence of the co-accused and hence, the completion of the trial within a short period also cannot be expected at this stage.
8. In 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."
9. In 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.
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10. Again, 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.
11. Further, 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.
12. The 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.
13. In the case of Karnail Singh (supra) as well as Dheeraj Kumar Shukla (supra) also, the Apex Court also expressed the same view and granted bail to the accused considering the period of incarceration.
14. In the case of Tapas Mandal (supra), the Apex Court considered the period of incarceration of almost 2 years and also considered the fact that the trial is not likely to be taken up in immediate near future.
15. Same view has been expressed by the Apex Court in the case of Man Mandal (supra) and also in the case of Anjan Nath (supra), as relied by the learned counsel for the petitioner.
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16. In the present case also, it is seen that the trial is not yet commenced nor even the charge could be framed by the learned Special Judge due to absence of one of the co-accused and the case is still at the stage of appearance in spite of the fact that the present accused/petitioner has been in custody for more than 1 year and 7 months.
17. So, considering the above aspect of the case and also considering the fact that there is no probability of disposal of the case within a short period nor there is any probability of commencing of trial in near future and further considering the view expressed by the Apex Court in the case laws referred to hereinabove, this Court is of the opinion that the present accused is also entitled for bail considering the long incarceration period of more than 1 year and 7 months.
18. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each 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, Gapendra Das @ Dipak, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall regularly appear before the learned Court below on each and every date fixed;
(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 Page No.# 8/8
(iii) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Karimganj, without prior permission.
19. In terms of above, this bail application stands disposed of.
JUDGE Comparing Assistant