Gauhati High Court
Kazi Alauddin vs The State Of Assam on 1 October, 2024
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GAHC010291782023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./695/2024
KAZI ALAUDDIN
S/O KAZI NAZRUL ISLAM
R/O VILL- SAHABAD,
P.S. KATLICHERA, DIST. HAILAKANDI, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. L R MAZUMDER, MR. A ISLAM
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
01.10.2024 Heard Mr. L. R. Mazumder, learned counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent.
2. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 praying for grant of bail to the accused/petitioner, who has been arrested on 02.09.2022 in connection with Badarpur P.S. Case No.195/2022, registered under Sections 21(b)/22(c)/25/29 of NDPS Act.
3. The Status Report called for, has already been received along with the scanned copy of the Case Record.
4. It is submitted by the learned counsel for the petitioner, Mr. Mazumder, that the petitioner is innocent and is in no way involved in the alleged offence. The case has been charge-sheeted with the allegation of possession of a commercial quantity of contraband. He further submitted that the investigating officer could not collect any incriminating materials against the petitioner, and without such material, the case has been charge-sheeted.
5. It is submitted that the present petition has been filed solely on the ground of the petitioner's long incarceration. He further submitted that the petitioner has been behind bars for the last 2 years and 29 days as of today, but, to date, the prosecution has only been able to examine three witnesses out of ten. The last witness was examined on 05.12.2023, and since then, no further witnesses have been examined. He further submitted that the petitioner is a permanent resident of the addressed locality and thus, there is no chance of absconding, if he is granted the privilege of bail. Rather, he is ready and willing to co-operate and appear before the learned Trial Page No.# 3/6 Court on each and every date fixed, and he is ready to abide by any conditions imposed on him, if the same is allowed.
6. In support of his submission, he relies on the decision passed by the Hon'ble Supreme Court in the case of Rabi Prakash Vs. State of Odissa , reported in 2023 0 Supreme (SC) 707, where the ground of prolonged incarceration was considered, and the petitioner was granted bail.
7. He further relies on another decision passed by the Hon'ble Supreme Court in the Case of Shariful Islam @ Sarif Vs. The State of West Bengal [SLP(Crl) 4173/2022 (Decided on 04.08.2022)] , where the Court also considered a period of 1 year and 6 months while granting bail to the petitioner.
8. On the other hand, Ms. Borah, learned Additional Public Prosecutor, has submitted that three witnesses have been examined by the prosecution. However, to date, the informant, who is a very relevant witness in the prosecution case, has not been examined. Furthermore, she submitted that this case involves a commercial quantity of contraband, and the embargo of Section 37 will apply.
9. She further submitted, from the testimony of the three witnesses already recorded by the prosecution, there is sufficient incriminating material against the petitioner, indicating that the contraband was recovered from the possession of the accused/petitioner along with others. Additionally, she pointed out that, according to the Status Report, the witnesses could not be examined due to some technical reasons, and the presiding officer was also on leave for a considerable period. Accordingly, she raised an objection and submitted that considering only the period of incarceration for bail of the accused/petitioner cannot be justified, and the probability of the accused/petitioner absconding cannot be denied at this stage.
10. After hearing the submissions made by the learned counsels for both sides, I have perused the scanned copy of the case record as well as the present Status Report called for from the learned Trial Court. It is seen that only three witnesses have Page No.# 4/6 been examined by the prosecution. The last witness was examined on 05.12.2023, and no other witnesses have been examined to date. On one occasion, two witnesses were present, but they could not be examined due to the busy schedule of the Court.
11. The Hon'ble Supreme Court has passed the following Judgments & Orders based on the period of incarceration, which are as follows:-
(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]
(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)]
12. In the instant case, it is observed from the order passed by the learned Trial Page No.# 5/6 Court that, apart from issuing summons, no other efforts have been made to secure the attendance of the prosecution witnesses, who remained absent for a considerable period.
13. Considering the entire facts and circumstances of the case, including the length of detention already undergone by the petitioner (2 years and 29 days), and in light of the views expressed by the Hon'ble Supreme Court regarding the period of incarceration, this Court is of the opinion that the prolonged period of incarceration may be a valid ground for considering the petitioner's bail application. Furthermore, there is no likelihood of the trial being completed in the near future.
14. Further, in the case of Rabi Prakash (Supra), the Supreme Court has observed 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)(ii) of the NDPS Act."
15. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/- (Rupees one lakh) only with two sureties of like amount to the satisfaction of the learned Chief Judicial Magistrate, Karimganj, the accused/petitioner, namely, Kazi Alauddin, be enlarged on bail, subject to the following conditions:
(i) 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
(ii) that the petitioner shall not leave the jurisdiction of the learned Chief Judicial Magistrate, Karimganj, without prior permission.
(iii) that the petitioner shall deposit copy (s) of PAN Card, Aadhaar Card and Voter Identity Card at the time of furnishing his bail bond.
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16. In terms of above, this bail application stands disposed of.
JUDGE Comparing Assistant