Gauhati High Court
Majinder Singh vs The Union Of India on 20 April, 2024
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GAHC010059692024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./835/2024
MAJINDER SINGH
S/O SHRI GURMIT SINGH
R/O BUGHA ROAD,
NEAR CYCLE STORE,
GURU KA KHOOH, P.O. AND P.S. TARAN TARAN IN THE STATE OF PUNJAB-
143401
VERSUS
THE UNION OF INDIA
REPRESENTED BY NCB, ZONAL UNIT, GUWAHATI.
Advocate for the Petitioner : MR. M BISWAS
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 20.04.2024
1) Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, Narcotic Control Bureau (NCB).
2) This application under Section 439 of the Code of Criminal Procedure, Page No.# 2/12 1973 has been filed by the petitioner, namely, Majinder Singh, who has been detained behind the bars since 20.02.2022 (for last 2 years 2 month) in connection with NDPS Case No. 180/2022 corresponding to NCB Crime No. 03/2022 under Section 21(c)/29 of the NDPS Act, 1985 pending in the Court of learned Additional Session Judge No. 3, Kamrup (M), Guwahati.
3) The gist of accusation in this case is that the Narcotic Control Bureau, represented by its Intelligence Officer, Guwahati Zonal Unit, Guwahati, lodged a complaint before the court of learned Session Judge, Kamrup (M), Guwahati, inter-alia, alleging that, on receipt of information through reliable sources, that two persons would be carrying morphine in a vehicle, a search operation was conducted on 18.02.2022, and at around 1800 hours, a Maruti Swift Desire car bearing Registration No. AS03H3191 was intercepted at Sonapur toll plaza point. Two persons, namely Ataur Rahman and Mohammad Shuhud Ahmed Laskar, were apprehended from the said vehicle, and on search of the said vehicle, 12.040 kg of morphine was recovered from there.
4) After some time, another vehicle bearing registration No. AS01EV8493 was also intercepted, and the driver of the said vehicle, namely Akram Hussain Chaudhry, was also apprehended, and on search of the said vehicle, morphine amounting to weighing about 5 kg was recovered from the said vehicle.
5) Later on, on 19.02.2022, at about 1700 hours, one Prem Narayan Jha, Intelligence Officer, Narcotic Control Bureau, received reliable information that one person, namely, Majinder Singh, (present petitioner), was going to deliver the seized 12.040 kg of morphine from Guwahati to West Bengal and as per information, the petitioner was apprehended, and his voluntary statement was recorded under Section 67 of the NDPS Act, 1985 in which it is stated that he confessed his involvement in trafficking of morphine seized in the instant case.
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6) Learned counsel for the petitioner has submitted that nothing was seized from the possession of the present petitioner, and he was arrested mainly on the basis of information received by Intelligence Officer of NCB. However, the source of the information is not disclosed and the only incriminating material against the present petitioner is the confessional statement of the petitioner recorded under Section 67 of the NDPS Act, 1985 which is not admissible as per the decision of the Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2013) 16 SCC 31.
7) Learned counsel for the petitioner has also submitted that the petitioner has been languishing behind the bars for last 2 years, 2 months, and though the charges were framed on 04.04.2023, only 6 out of 18 listed witnesses have been examined till date, and the NDPS Case No. 180/2022 has not fairly progressed, and the petitioner is entitled to get bail on the ground of prolonged incarceration also.
8) Learned counsel for the petitioner has submitted that to continue to keep the present petitioner under detention for a long period on one hand and to delay the trial of the case on the other hand is unfair and unreasonable and contrary to the spirit of Section 36 (1) of the NDPS Act, 1985, Section 309 of the Code of Criminal Procedure, 1973, and Article 14, 19 and 21 of the Constitution of India.
9) Learned counsel for the petitioner has also submitted that by keeping the present petitioner detained behind the bars for a long period and if any delay in the trial is caused either due to the prosecution side or the court and where there is no fault of the present petitioner, it would certainly violate the fundamental rights guaranteed to the present petitioner under Article 21 of the Constitution of India and hence, she has submitted that the petitioner is entitled Page No.# 4/12 to get bail solely on the ground of prolonged incarceration as such a prolonged incarceration has violated the fundamental right to life and personal liberty guaranteed to him by Article 21 of the Constitution of India.
10) To support her submissions, learned counsel for the petitioner has cited following rulings:
i. Hussain Ara Khatoon & Ors Vs. Home Secretary, State of Bihar, reported in (1980) 1 SCC 98 ii. Supreme Court Legal Aid Committee Representing Under Trial Prisoners Vs. Union of India & Others reported in 1994 (6) SCC 731 iii. Satender Kumar Antil Vs. Central Bureau of Investigation, reported in (2022) 10 SCC 51 iv. Mohd Muslim @ Hussain Vs. State (NCT of Delhi) reported in 2023 SCC Online SC 352 v. Rabi Prakash Vs. State of Orissa reported in 2023 SCC Online SC 1109.
vi. Chitta Biswas @ Subhas Vs. The State of West Bengal (Order dated 07.02.2020) in Criminal Appeal No. 245/2020, vii. Nitesh Adhikari @ Bapan Vs. State of West Bengal (Order dated 01.08.2022 in SLP Criminal No. 5769/2022), viii. Shariful Islam @ Sarif Vs. State of West Bengal (order dated 04.08.2022 in SLP Criminal No. 4173/2022).
11) On the other hand, Mr. S. C. Keyal, learned Standing Counsel, NCB, while Page No.# 5/12 vehemently opposing the grant of bail to the petitioners, has submitted that the problem of drug addicts and drug trafficking is international and the mafia is involved in commission of such crime. It is the crime against society and it has to be dealt with iron hands. He referred to the statement of objects and reasons for enacting the NDPS Act, 1985 and has submitted that to combat the menace of drug trafficking, the NDPS Act, 1985 has introduced stringent provisions regarding bail and therefore, to safeguard the life and liberty of innocent persons who become victim to this dragnet of organized crime of illicit drug trafficking, the provisions of NDPS Act, 1985 are required to be interpreted keeping in the mind the object and purpose of the Act.
12) Learned Standing Council for the NCB has also submitted that the petitioner has confessed his guilt in his statement recorded under Section 67 of the NDPS Act, 1985. Moreover, there is evidence on record to suggest that the petitioner made calls to the other co-accused from the mobile number which is registered in the name of his wife.
13) Citing the ruling of the Apex Court in Pramod Kumar Saxena Vs. Union of India, reported in (2008) 9 SCC 685. Mr. S. C. Keyal, learned Standing Counsel, NCB has submitted that mere long period of incarceration in jail would not be per se illegal. If the petitioner has committed offence he has to remain behind the bars and such detention in jail even as under trial prisoner would not be violative of the Article 21 of the Constitution of India.
14) Learned Standing Counsel, NCB has also submitted that where a bail application has been rejected earlier there is an onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier application have been rejected and after such consideration, if court is of Page No.# 6/12 opinion that bail has to be granted then court will have to give specific reason why in spite of earlier rejection the subsequent application should be granted.
15) Learned Standing Counsel, NCB has also submitted that in a criminal trial it is not possible to lay down a fixed period for conclusion of trial as the conclusion of criminal trial depends on many factors like nature of offence, the number of accused, the number of witnesses, the workload in the particular court, the means of communication and several other circumstances which are to be kept in mind and if the delay is not for any wrong on the prosecution side the accused should not get benefit of any such systemic delay.
16) Learned Standing Counsel, NCB has cited a ruling of the Apex Court in the case of High Court Bar Association, Allahabad Vs. The State Of Uttar Pradesh reported in 2024 Legal Eagle (SC) 198. to buttress his submission. Apart from above cited rulings learned Standing Counsel, NCB has also cited following ruling in support of his submission:
i. Hira Singh and Another Vs. Union of India
and Another reported in 2020 (20) SCC 272.
ii. Kalyan Chandra Sarkar Vs. Rajesh Ranjan @
Pappu Yadav and Another reported in (2005) 2 SCC 42.
iii. Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another reported in (2004) 7 SCC 528 .
iv. Narcotics Control Bureau v. Kishan Lal reported in (1991)1 SCC 705.
v. Union of India v. Ram Samujh and Anr., reported in 1999 9 SCC 429. vi. State of Punjab v. Rakesh Kumar, decided on 03.12.2018 reported in 2019 (2) SCC 466. Page No.# 7/12 vii. State of Maharashtra v. Buddhikota Subba Rao reported in 1989 0 Supreme (SC) 493. viii. Satender Kumar Antil v. CBI reported in 2022 (10) SCC 51. ix. Animul Islam v. Union of India, decided on
06.05.2022, reported in 2022 0 Supreme (Gau) 321.
x. Gurwinder Singh v. State of Punjab, reported in 2024 0 Supreme (SC) 104.
xi. Narcotics Control Bureau v. Mohit Aggarwal, reported in 2022 0 Supreme (SC) 619. xii. Union of India v. Ajay Kumar Singh @ Pappu, reported in 2023 0 Supreme (SC) 285. xiii. State of Bihar & Anr. v. Amit Kumar @ Bacha Rai, reported in 2017 (13) SCC 751. xiv. MattuLal v. Radhe Lal, reported in AIR 1974 SC 1596. xv. National Insurance Company Limited v. Pranay Sethi reported in 2017 16 SCC 680. xvi. Secundrabad Club v. CIT reported in 2023 0 Supreme (SC) 765. 17) Learned Standing Counsel, NCB has also submitted that since the
contraband seized in this case is of commercial quantity, the embargo of Section 37 of the NDPS Act, 1985 comes into play and as there are incriminating materials against the petitioner, he is not entitled to get bail in this case. He has also submitted that in view of the embargo of section 37 of the NDPS Act, 1985, the long incarceration in itself cannot be a ground for allowing the petitioner to Page No.# 8/12 go on bail.
18) I have considered the submissions made by learned counsel for both the sides and have perused the materials available on record very carefully. I have also considered the rulings cited by learned counsel for both the sides.
19) In the instant case on perusal of the materials available on record, it appears that the only material against the present petitioner is the statement recorded under Section 67 of the NDPS Act, 1985 which is inadmissible in evidence as per the decision of the Apex Court in the case of " Tofan. Singh Vs. State of Tamil Nadu" (Supra). Moreover, it also appears that the petitioner has been languishing behind the bars for last 2 years, 2 months and the trial has not fairly progressed and only 6 out of 18 listed witnesses have been examined till late.
20) The Apex Court has observed in a catena of rulings that any procedure which does not ensure speedy trial for determination of guilt of a person who is undergoing incarceration for a long period would not be be regarded as a reasonable, fair or just procedure and it would fall foul of Article 21 of the Constitution of India
21) Though, Section 37 of the NDPS Act, 1985 provides for stringent provision for grant of bail, however, Section 36 (1) of the NDPS Act, 1985 also mandates the Government to constitute as many special courts as necessary for the purpose of providing speedy trial of offences under the NDPS Act, 1985. If speedy trial is not provided to an incarcerated accused, it will certainly have a negative impact on the rigours of Section 37 of the NDPS Act, 1985.
22) This Court is of considered opinion that for whatsoever reason, if delay has been caused and if it is not due to any fault of the petitioner, then to keep him under incarceration for long period on one hand and to cause the delay in Page No.# 9/12 culmination of the trial on the other hand would certainly be violative of his fundamental rights guaranteed under Article 21 of the Constitution of India.
23) In this regard the observations made by the Apex Court in the case of Satender Kumar Antil (Supra) are relevant and which is quoted here in below:
49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the non-compliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.
24) The Supreme Court of India in " Mohd Muslim @ Hussain Vs. State"
(NCT of Delhi)" (supra) has observed that "Grant of bail on ground of undue delay in trial, cannot be said to be fettered by section 37 of the NDPS Act, 1985".
25) Similarly, the Apex Court of India has also observed in " Rabi Prakash Vs. The State of Odisha" (Supra) wherein, it observed that "prolonged incarceration, generally militates against the most precious fundamental right Page No.# 10/12 guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act, 1985."
26) As regards the submissions made by learned Standing Counsel, NCB that in the case of Pramod Kumar Vs. Union of India and others (Supra), the Apex Court has observed that mere long incarceration in jail would not be per se illegal, it appears that no such observation has been made by the Apex Court in the said case, rather, it was the narration of the averments made by the state of UP in its affidavit submitted before Apex Court and in the said case the petitioner was ultimately granted bail.
27) Moreover, as discussed here in above, though the provisions of section 37 of the NDPS Act, 1985 are very stringent in nature and same has to be interpreted keeping in the mind the object and purpose of the Act, however, it is also to be kept in mind that the NDPS Act, 1985 also mandates speedy and expeditious trial of offences under the said Act. If there is undue delay in the trial and the accused has been detained for long period, his fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India would outweigh the embargo of Section 37 of the NDPS Act, 1985.
28) This Court is also of the considered opinion that while considering an application for bail involving commercial quantity of contraband, if the court comes to a finding that there has been undue delay in completion of the trial and that there has been prolonged incarceration of the petitioner during this time, he would be entitled to get bail in such case of prolonged incarceration as the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37 of the NDPS Act, 1985.
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29) It is also pertinent to mention herein that the Supreme Court of India had granted bail to the accused facing charges for possession of commercial quantity of contraband only on the ground of prolonged incarceration in "Shariful Islam @ Sarif Vs. State of West Bengal" (Supra), wherein the accused was detained behind the bars for one year and six months.
30) In "Nitesh Adhikari Vs. State of West Bengal" (Supra), the Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months.
31) In the instant case also the petitioner has been detained behind the bars for last 2 years, 2 months and the trial has not fairly progressed. There seems to be no fault on the part of the present petitioner for causing delay in the trial as he has been detained behind the bars since the date of his arrest.
32) Under the facts and circumstances of this case, considering the prolonged incarceration of the petitioner as well as slow progress of the trial, this court is of the considered opinion that the fundamental right to life and personal liberty of the petitioners guaranteed under Article 21 of the Constitution of India has outweighed the fetters imposed under Section 37 of the NDPS Act, 1985 and accordingly the petitioner is entitled to get bail in this case.
33) In view of above, the above-named petitioner is hereby directed to be released on bail on furnishing a bond of Rs. 50,000/- (Rupees Fifty Thousand only) with two suitable sureties, one of whom should be a government employee and should be resident of the State of Assam, of like amount to the satisfaction of the trial court with following conditions: -
i. That the petitioner shall cooperate in the trial of Special (NDPS) Page No.# 12/12 Case No. 180/2020, which is pending in the Court of learned Additional Session Judge No. 3, Kamrup (M), Guwahati; ii. That the petitioner shall regularly appear before the trial court as and when so required by the trial court;
iii.That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the trial court in the trial pending against the present petitioners;
iv. That the petitioner shall provide their contact details including photocopies of his Aadhar Card, Driving License, PAN card, mobile number, and other contact details before the trial court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the trial court and when such leave is granted by the trial court, the petitioner shall submit his leave address and contact details during such leave before the trial court.
34) With the above observations, this bail application is hereby disposed of.
JUDGE Comparing Assistant