Gauhati High Court
Indra Kumar Bhattarai @ Indram Kr ... vs The Union Of India on 19 January, 2024
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GAHC010244812023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3964/2023
INDRA KUMAR BHATTARAI @ INDRAM KR BHATTAROY
S/O BHIM BAHADUR BHATTARAI, R/O VILL-KALAPAHAR MUKULI, P.O.-
KALAPAHAR, P.S.-KANGPOKPI, DIST-KANGPOKPI, MANIPUR-795122
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, NARCOTIC CONTROL
BUREAU AT GUWAHATI
Advocate for the Petitioner : MR. A CHAUDHURY
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 19.01.2024
1) Heard Mr. B. K. Mahanjan, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, NCB.
2) This application under section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Indra Kumar Bhattarai @ Indram Page No.# 2/8 Kr Bhattaro who is detained behind the bars since 23.02.2020 (for last 3 years 10 months 27 days) in connection with NDPS Case No. 50/2020 arising out of NCB Crime Case No. 07/2020 pending before the Court of learned Additional Sessions Judge No.3, Kamrup (M).
3) The gist of accusation in this case is that on 18.08.2020 the Narcotics Control Bureau lodged a complaint before the learned Sessions Judge, Kamrup (M), Guwahati, inter-alia, alleging that on 22.02.2020, the Intelligence Officer, NCB received an information through reliable sources that two persons, namely, KSH Gautam Singh and Indra Kumar Bhattarai (the present petitioner) were coming to Basistha Chariali, Guwahati carrying a huge quantity of Methamphetamine tablets (Yaba tablets). It was also informed that they will be reaching National Highway No. 37 near Basistha Chariali, at about 8.00 pm and will deliver the said consignment to some persons namely, Manoranjan Das, Ravi Ahmed Barbhuiya and Sadik Hussain Rajbarbhiya who were going there in a Maruti vehicle bearing Registration No. AS11M8582. After receipt of the said information, a search team was constituted and the said team proceeded to the place of occurrence and intercepted the said vehicle and recovered 5.15 kg of Methamphetamine tablets from the possession of Ravi Ahmed Barbhuiya and KSH Gautam Singh, who were inside the vehicle. The other accused persons who boarded the said vehicle were also arrested. The present petitioner was formally arrested on 23.02.2020. Thereafter, on 11.11.2021 charges were framed by the Trial Court under Section 22(c)/29 of the NDPS Act, 1985 against the present petitioner and the other accused persons and though there are 11(eleven) listed witnesses in the compliant petition, till now only 7(seven) witnesses have been examined and the present petitioner is languishing behind the bars for more than last 3 years and 10 months.
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4) Learned counsel for the petitioner has submitted that the petitioner has been detained behind the bars for the last 3 years 10 months and 27 days and only 7 of the listed prosecution witnesses have been examined and there is unlikelihood that the trial would culminate soon and hence on the ground of prolonged incarceration, the prayer for bail has been made.
5) It is also submitted by learned counsel for the petitioner that one of the co-accused namely, Saddik Hussain Rajbarbhuiya who was travelling in the same Maruti vehicle from which the contraband was seized has already been granted bail by this Court by order dated 10.01.2024 in B. A. No.3158/2023.
6) Learned counsel for the petitioner has cited ruling of the Apex Court in "Thana Singh Vs Central Bureau of Narcotics reported in (2013) 2 SCC 590," wherein the Apex Court emphasised in conducting day to day trial in all pending cases.
7) Learned counsel for the petitioner has cited ruling of the Apex Court in "Hussain & Anr. Vs. Union of India reported in (2017) 5 SCC 702,"
wherein the Apex Court had observed that in Sessions cases the trial should normally be concluded within a period of two years.
8) Learned counsel for the petitioner has submitted that though the present case is a case under NDPS Act, 1985, the detention of the petitioner for more than 3 years 10 months is long enough to override the embargo of Section 37 of the NDPS Act, 1985. In support of the said submission, the learned counsel for the petitioner has also cited the ruling of the Hon'ble Apex Court in "Tapas Mondal Vs. The State of West Bengal & Ors" [Order dated 14.09.2023 in Special leave appeal (Criminal) No. 8464/2023], wherein the petitioner was granted bail for incarceration of almost two years in spite of the fact that he was charged under the offence for possessing commercial quantity Page No.# 4/8 of contraband.
9) Similarly, learned counsel for the petitioner has also cited a ruling of Hon'ble Apex Court in "Man Mandal and Another Vs. The State of West Bengal & Ors" [Order dated 14.09.2023 in Special leave appeal (Criminal) No. 8656/2023], wherein also the petitioner was granted bail on the ground that almost two years the trial was not completed and though the petitioner was charged for an offence under section 21(c) of the NDPS Act, 1985.
10) Learned counsel for the petitioner has submitted that though the embargo of Section 37 of the NDPS Act, 1985 is mandatory in nature, however, in view of the observations made by the Supreme Court in a number of cases, in case of inordinate delay in trial, the embargo is lifted and it gives way to the right of the accused under Article 21 of the Constitution of India.
11) Learned counsel for the petitioner has also cited a ruling of Apex Court in "Dheeraj Kumar Shukla Vs. State of Uttar Pradesh" [order dated 25.10.2023 passed in Special Leave to Appeal (Criminal) No. 6690/2022] wherein the petitioner who was facing charge of possessing commercial quantity of Ganja was granted bail mainly on the ground of prolonged incarceration of 2 and ½ years in spite of the embargo of Section 37 of the NDPS Act, 1985.
12) On the other hand, learned Standing Counsel, NCB has vehemently opposed the grant of bail to the present petitioner on the ground that the quantity of contraband seized in connection with this case is of commercial nature and due to the embargo of Section 37 of the NDPS Act, 1985, the petitioner may not be released on bail. He has submitted that the present petitioner is the accomplice of main accused KSH Gautam Singh who is the supplier of Methamphetamine tablets and it is alleged that on the direction of main accused KSH Gautam Singh brought Methamphetamine tablets from Page No.# 5/8 Imphal to Guwahati and CDR analysis of mobile phone belonging to the present petitioner shows that he was in constant touch with the driver of the truck in which Methamphetamine tablets were brought to Guwahati.
13) Learned Standing Counsel, NCB has cited a ruling of Apex Court in "Tarun Kumar Vs. Assistant Director Directorate of Enforcement"
reported in 2023 0 Supreme SC 1162 wherein the Apex Court has observed that while applying the principle of parity, the Court is required to focus upon the ruling attached to the accused whose application is under consideration.
14) I have considered the submissions made by learned counsel for both the sides and perused the materials available on record including the scanned copy of the case record of NDPS Case No. 50/2020.
15) It appears from record that since the date of arrest, i.e. 23.02.2020, the petitioner has been detained behind the bars and though the charges were framed on 11.11.2021, till now, only 7(seven) out of 11(eleven) listed witnesses have been examined and the trial has not yet been completed in spite of the fact that the petitioner has been detained behind the bars for more than 3 years 10 months.
16) It also appears that the delay in disposal of the trial may not be attributed to any fault on the part of the present petitioner as he was detained behind the bars throughout the trial from the date of his arrest.
17) Hon'ble Supreme Court of India in "Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" reported in 2023 SCC Online SC 352 has observed that "grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985".
18) The Hon'ble Apex Court in "Rabi Prakesh Vs. State of Orissa"
reported in 2023 live law (SC) 533, wherein it has been observed by the Page No.# 6/8 Hon'ble Apex Court 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."
19) In view of the above observations made by Hon'ble Apex Court, this Court is of the considered opinion that if under the facts and circumstances of the case, this Court comes to a finding that there is undue delay in completion of the trial and that the incarceration of the petitioner is long enough, he would be entitled to get bail on the ground of such prolonged incarceration as in such case of prolonged incarceration, the 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.
20) It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an 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" (order dated 04.08.2022 in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months.
21) In "Nitesh Adhikari Vs. State of West Bengal" (Order dated 04.05.2022 in SLP Criminal No. 5769/2022), Hon'ble 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.
22) Similarly in "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Order dated 22.08.2022 in SLA Criminal No. 5530/2022), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years.
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23) In the instant case also, the present petitioner has been detained behind the bars for more than 3 years 10 months and the trial is yet to culminate and in view of the facts and circumstances of this case as well as considering the observations made by the Apex Court in the rulings cited hereinabove, wherein, it has dealt with the question of long incarceration of similarly situated petitioners who were before the Apex Court, this Court is of the considered opinion that in the instant case also, the facts and circumstances are such that the long incarceration of the present petitioner outweighs the embargo of Section 37 of the NDPS, Act 1985 and the petitioner is therefore entitled to get bail on the ground of prolonged incarceration only.
24) In view of the above, the petitioner, namely, Indra Kumar Bhattarai @ Indram Kr Bhattaro is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Sessions Judge, Kamrup, Metro with the following conditions:
i. That the petitioner shall cooperate in the trial of NDPS Case No. 50/2020, which is pending in the Court of learned Special Judge, Kamrup, Metro;
ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;
iii. 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 petitioner;
Page No.# 8/8 iv. That the petitioner shall provide his 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; and vi. That the petitioner shall not commit any similar offence while on bail.
25) With the above observation, this bail application is accordingly disposed of.
26) Let a copy of this order be furnished by the Registry of this Court.
JUDGE Comparing Assistant