Dipu Mahanta Vs the State of Assam

2. This application under Section 483 BNSS has been filed by the petitioner namely, Sri, Dipu Mahanta, who is detained behind the bars since 10.11.2023 ( for

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more than 1 year 8 months) in connection with NDPS Case No. 13/2024 corresponding to Mukalmua PS Case No. 561/2023 under Section 22(c)/29 of the NDPS Act.

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3. The gist of accusation in this Case is that on 11.11.2023 one Shri Tarani Das had lodged an FIR before the Officer-In-Charge of Mukalmua Police Station, inter-alia, alleging that a reliable information was received by the In-Charge of Adabari Police Post from secret sources on 11.11.2023 to the effect that large number of narcotic and psychotropic drugs have been kept in the house of one Tapan Mahanta. The informer also revealed that Tapan Mohanta, Saddam Hussain and Dipu Mohanta are involved in trafficking of narcotic drugs.

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4. Accordingly, a general diary entry was made by the Officer-In-Charge of Mukalmua Police Station namely by GD Entry No. 11.11.2023 and a police team was constituted to conduct the search.

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5. Accordinlgy, the police team took the accused Tapan Mahanta and Saddam Hussain present petitioner from the stationary shop of Tapan Mahanta and proceeded to the house of Tapan Mahanta and during search of the house premises of accused Tapan Mahanta, 38,880 numbers of Spas Trancan Plus Capsules were found there.

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6. Learned counsel for the petitioner has submitted that the petitioner was arrested in this case on 12.11.2023 and he has been languishing behind the bars for last more than 1 year 8 months. However, out of total 15 listed prosecution witnesses till date only 4 prosecution witnesses have been examined. He submits that the petitioner is entitled to get bail for violations of his fundamental rights guaranteed under Article 21 of the Constitution on

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account of prolong incarceration.

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7. He further submits that the petitioner is also seeking bail for violation of his fundamental rights guaranteed under Article 22(1) of the Constitution of India at the time of his arrest. He submits that though notice under Section 50 of the Code of Criminal Procedure, 1973 was served on him at time of his arrest, same does not contain any ground of arrest. It only contains the Case No. in which the petitioner was arrested and the penal provision involved in that case. Nothing apart from the aforesaid facts is there in the said notice.

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8. Learned Counsel for the petitioner has further submitted that in the meanwhile two of the co-accused namely Tapan Mahanta and Saddam Hussain were already allowed to go on bail by this Court and, therefore, he also prays for allowing the petitioner to go on bail.

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9. On the other hand learned Additional Public Prosecutor has submitted that the quantity of contraband seized in this case is of commercial quantity and, therefore, the embargo of Section 37 of the NDPS Act is applicable to this case. He, however, fairly submits that the notice under Section 50 which is available on record, which was served on the petitioner at the time of his arrest, does not contain any grounds of arrest.

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10. I have considered the submissions made by the learned counsel appearing for both sides and have gone through the scanned copy of the case records of NDPS Case No. 13/2024, which was requisitioned in connection with this case.

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11. In the instant case, it appears that the petitioner has been languishing behind the bars for more than 1 year 8 months and only 4 out of total 15

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prosecution witnesses have been examined.

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12. It appears from the above facts that there is an unlikelihood of early culmination of the trial. The Apex Court in many of its rulings have observed that prolonged incarceration over-rides the embargo of the Section 37 of the NDPS Act,1985 and in a case where is the Court is of considered opinion that the incarceration is long enough in such a case it may grant bail to an accused in spite of the embargo of the Section 37 of the NDPS Act as in such a case the fundamental rights guaranteed under Article 21 of the Constitution of India would outweigh the embargo of Section 37 of the NDPS Act. Moreover, in this case it also appears that the petitioner was not furnished with the grounds of arrest at the time of his arrest as the notice served on him under Section 50 of the CrPC does not contain any such ground.

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13 . In the case of “Vihan Kumar Vs. State of Haryana and Another” (Supra), the Apex Court has observed that any violation of the constitutional mandate of punishing the grounds of arrest to an arrestee as the time of his arrest in writing would be a violation of Article 22(1) of the Constitution of India and once such a violation is established, the arrest of such an arrestee itself becomes illegal and on that grounds, such an arrestee is entitled to get bail.

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14. For the reasons discussed in the forgoing paragraphs, this Court is of the considered opinion that for violation of the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India as well as under Article 22 (1) of the Constitution of India, he is entitled to get bail in this case.

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15. Accordingly, the petitioner is allowed to go on bail of Rs ; 1,00,000/( Rupees one lakh) with two sureties of like amount subject to the satisfaction of the trial court with following conditions :

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i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 13/2024, which is pending before the Trial Court;

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ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

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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;

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iv. That the petitioner shall provide their contact details including photocopies of his Adhar Card or Driving License of PAN Card as well as Mobile Number, and other contact details before the Trial Court;

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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

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vi. That the petitioner shall not commit any offence while on bail.

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16. This Bail Application accordingly, disposed of.

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JUDGE

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Dipu Mahanta v. the State of Assam

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Dipu Mahanta v. the State of Assam

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