ORDER

Date : 24.06.2022 Heard Mr. T. Baidya, learned counsel appearing for the accused petitioner as well as Mr. B. B. Gogoi, learned Addl. P.P., Assam appearing for the State respondent.

By this petition under Section 439 Cr.P.C., the accused-petitioner, namely, Leon Hazarika, has prayed for grant of bail in connection with Nagaon Sadar P.S. Case No.1035/2021 {Spl. (NDPS) Case No. 64/2021} under Sections

21(c)/22(b)/29 of the NDPS Act.

The scanned copy of the case record along with the case diary, as called for, is placed before the Court.

It is noticed that the accused petitioner has been in judicial custody since

21.05.2021, i.e. for 399 days.

Mr. T. Baidya, learned counsel for the accused petitioner, submits that the accused is aged about 21 years and a student. Mr. Baidya emphatically submits that the accused is a victim of circumstances as at the relevant time of recovery of brown sugar, he was merely standing nearby the place of occurrence. Mr. Baidya also submits that the accused petitioner is an HIV+ patient, vide Annexure-IV, the medical report and as observed by the learned Court below, he is in a critical health condition. Therefore, Mr. Baidya submits that the accused may be released on bail subject to any condition so as to enable him to undergo advanced medical treatment on his own outside.

Strongly opposing the bail application, Mr. Gogoi, learned Addl. Public Prosecutor submits that the commercial quantity of heroin and codeine based cough syrup etc., were recovered and seized by police from the possession of the present accused and 3 (three) others. On the other hand, Mr. Gogoi submits that the medical reports show that the accused is HIV+, but after proper medical treatments, he is doing-well except suffering from general weakness.

The case relates to recovery and seizure of brown sugar, weighing 5.80 grams and 12 number of codeine phosphate based cough syrup bottles from the possession of the accused petitioner.

A perusal of the case record shows that the police after completion of investigation has laid a charge-sheet against the present accused and three others under Sections 21(c)/22(b)/29 of the NDPS Act vide order, dated 30.07.2021. The recovery and seizure of the contraband were made from the exclusive possession of all the charge-sheeted accused persons. The FSL report confirmed the seized materials to be heroin, codeine and tramadol. The learned trial Court has framed charges as charge-sheeted, vide order, dated 05.10.2021. 4 (four) prosecution witnesses out of 6 (six) listed witnesses are examined till date and presently the case is fixed for statement/defence and argument.

The medical reports on the health status of the present accused reveal that he is HIV+, for which he has been undergoing medication and treatment response is good.

It is noticed from the order, dated 04.06.2022, passed by the learned Special Judge (NDPS Act), Nagaon that co-accused Safikul Islam is released on bail observing, inter-alia, that “it has been revealed the seized articles were recovered not from the accused person, but one VDP member, who was also the informant of the case.” This observation of the learned trial Court based on evidence recorded in the case leads to the inference that the bar under Section 37 of the NDPS Act has been frustrated thereby and, as such, the present accused petitioner, who is HIV+ patient and who is in judicial custody for 399 days may be allowed to go on bail although the case is at its fag end of trial.

Accordingly, it is provided that the accused petitioner, named above, shall be released on bail of Rs. 50,000/- with one surety of like amount to the satisfaction of the learned Special Judge (NDPS Act), Nagaon subject to the following conditions-

i) That the accused petitioner shall continue to appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of; and ii) That the accused petitioner shall not directly or indirectly make any inducement, threat o