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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
Abdul Salik And Anr S/O- Late Foizul Islam And Ors. – Petitioners
Versus
The State Of Assam To Be Represented By The Public Prosecutor – Respondent
Bail Appln./155/2024
Decided On : 23-02-2024
BAIL - Narcotic Drugs and Psychotropic Substances Act - Sections 21(C), 25, 29 of NDPS Act, 1985; Section 439 of Cr.P.C.; Section 436A of Cr.P.C. - The court discussed the stringent provisions of the NDPS Act, particularly Section 37, which imposes restrictions on granting bail for offenses involving commercial quantities of narcotics. The court emphasized the necessity of establishing reasonable grounds for believing the accused is not guilty and unlikely to commit further offenses while on bail. The interpretation of these provisions influenced the court's decision to deny bail, despite the petitioners' lengthy detention and claims of trial delays.
Fact of the Case:
The petitioners, Abdul Salik and Abdul Fatta, sought bail after being in custody for 656 days in connection with a case involving the seizure of narcotic drugs under the NDPS Act. Their first bail application was rejected, and they argued that other co-accused were granted bail, and that the trial was delayed, infringing their right to a speedy trial.
Finding of the Court:
The court found that the petitioners were involved in the storage of a commercial quantity of heroin, and the evidence suggested that the contraband was recovered from their property. The court noted that the trial was ongoing and that the evidence presented did not support the claim of lack of possession of the contraband.
Issues: Whether the petitioners were entitled to bail under the NDPS Act considering the length of their detention and the nature of the charges against them.
Ratio Decidendi: The court reiterated that under Section 37 of the NDPS Act, bail can only be granted if there are reasonable grounds for believing the accused is not guilty and unlikely to commit further offenses. The court emphasized that the burden of proof lies with the accused to demonstrate these grounds, which the petitioners failed to do.
Final Decision: The court rejected the bail application, stating that the petitioners did not meet the necessary legal standards for bail under the NDPS Act, despite their prolonged detention.
ORDER :
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
Heard Mr. A. Ahmed, learned counsel for the petitioners. Also heard Ms. S.H. Bora, learned Addl. P.P. for the State.
2. By this bail application filed under section 439 Cr.P.C., the petitioners, namely, (i) Abdul Salik, and (ii) Abdul Fatta, who are in custody since their arrest on 08.05.2022, in connection with Patharkandi P.S. Case No. 130/2022 under sections 21(C)/25/29 of the NDPS Act, 1985, is praying for bail. The said case is being tried as Karimganj Special (NDPS) Case No.74/2022.
3. It may be mentioned at the outset that in this application, the name of petitioner no. 2 is Abdul Fatta. In B.A. No. 3415/2023, his name is Abdul Fattha, but in the TCR, his name is written as Abdul Fattah.
4. The learned counsel for the petitioners had submitted that the petitioners have spent 656 days in custody as on today.
5. The prayer for bail by the petitioners has been rejected by this Court by order dated 14.11.2023, passed by this Court in Bail Appln. No. 3415/2023. Hence, this is the second bail application by the petitioners before this Court.
6. The learned counsel for the petitioners has submitted that as per his instructions, except for the petitioners, the other co-accused are on bail and accordingly, it is submitted that as the petitioners, being similarly situated, are entitled to bail.
7. It was also submitted that there has been an inordinate delay in the trial and till date only 4 (four) out of 10 (ten) witnesses listed in the charge-sheet have been examined and accordingly, it was been submitted that there is no chance of an early conclusion of trial for which the petitioners are entitled to be enlarged on bail. In this regard, it was submitted that delay in trial has infringed the fundamental right of the petitioners as enshrined in Article 21 of the Constitution of India and on the ground that there is no sign of early trial, the co-ordinate Bench of this Court has released under-trial prisoners considering the length of their detention. It was also submitted that even the Supreme Court of India had deprecated the long incarceration of under-trial prisoners.
8. It was also submitted that the contraband was not seized from the conscious possession of the petitioners. In this context, it was submitted that as per the FIR dated 07.05.2022, the contraband was allegedly recovered from a closed room where it was kept concealed under the hay stack. However, three out of four prosecution witnesses examined so far have given contradictory evidence in Court regarding the place from which the contraband was recovered. Hence, it was reiterated that the recovery of contraband was not seized from the conscious possession of the petitioners.
9. It was also submitted that the petitioners and their immediate family members have movable and immovable property and therefore, there is no chance that the petitioners would abscond. Moreover, it was submitted that the petitioners are ready and willing to abide by any condition that may be imposed on grant of bail.
10. In support of his submissions, the learned counsel for the petitioners has cited the following cases, viz., (i) Anjan Nath v. The State of Assam, order dated 17.10.2023, passed by the Supreme Court of India in SLP (Crl.) No. 9860/2023; (ii) Anjan nath v. State of Assam, judgment dated 19.07.2023, passed by this Court in B.A. No. 2022/2023; (iii) Rabi Prakash v. The State of Odisha, order dated 13.07.2023, passed by the Supreme Court of India in SLP (Crl.) 4169/2023, reported in 2023 LiveLaw (SC) 533; Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222.
11. Per contra, the learned Addl. P.P. has opposed the prayer for bail and it was submitted that there was no delay in the commencement of trial. Moreover, it was submitted that in the matter of grant of bail, the rigours of section 37 of the NDPS Act, 1985 was applicable. It was also submitted that from the evidence on record, it was apparent that the contraband was seized from the house of
The court established that the stringent requirements for granting bail under the NDPS Act, particularly the necessity of demonstrating reasonable grounds for believing the accused is not guilty, mus....
The court ruled that under the NDPS Act, bail requires reasonable grounds for believing the accused are not guilty and unlikely to offend again, regardless of detention length.
The absence of a chemical examination report does not render a bail application incomplete under the NDPS Act; the petitioner must satisfy the twin conditions for bail.
The NDPS Act imposes stringent requirements for bail in drug-related offenses, emphasizing societal safety over individual liberty when evidence of conscious possession exists.
The right to speedy trial under Article 21 can override stringent bail conditions in the NDPS Act, especially when an accused has faced prolonged incarceration without trial.
The right to a speedy trial is fundamental, and prolonged detention without trial infringes upon this right, warranting bail.
The right to a speedy trial is fundamental, and prolonged detention without trial violates Article 21 of the Constitution.
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