Gautam Rai Vs Union of India

the accused/petitioner, i.e, Gautam Rai, who was arrested on 17.06.2021 in connection with NCB Crime Case No. 12/2021 in reference Special (NDPS) Case No. 29/2021 under Section 8 (c) read with 20 (b) (ii) (c) and 29 of NDPS Act, 1985.

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3. The brief facts of the case is that on 17.06.2021, a written information was received from a reliable source that three (3) persons including the accused/petitioner were carrying a huge quantity of ganja by concealing it in a truck bearing Registration No. HR- 55 K 5550 and will be arriving at Baihata Chariali, Kamrup (Rural), Guwahati between 21.00 hrs to 23.00 hrs. Accordingly, a police team was authorized and sent to the location and after reaching the said location, they intercepted the suspected truck in the presence of independent witnesses.

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4 . It is further alleged that there were three (3) occupants in the truck in question including the accused/petitioner and upon thorough search of the vehicle, a special cavity was found behind the cabin of the truck and upon removing the cavity wall, total 23 packets of suspected ganja was found. It was suspected that the articles were ganja and loaded from Senapati, in an area after crossing Senapati Police Station of Manipur. Thereafter, the suspected ganja was tested and found to be positive for the test of ganja and the 23 packets of ganja weighing approximately 236.29 kgs. Accordingly, the contraband articles were sealed and seized. Thereafter, a case was registered.

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5. Thereafter, the accused/petitioner was arrested and forwarded before the Jurisdictional Magistrate Court. Hence, the present bail application.

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6. Mr. P P Medhi, learned counsel for the accused/petitioner submits that the accused/petitioner has been languishing in jail for the last 3 years, 10 months

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and 19 days. He further submits that out of the nine (9) prosecution witnesses, only two (2) have been examined till date. He further submits that trial having been prolonged, the fundamental rights of the accused/petitioner under Article 21 of the Constitution of India is totally infringed and violated.

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7. Per contra, Mr. SC Keyal, learned Special Public Prosecutor submits that since the contraband articles have been seized from the vehicle in question while the accused/petitioner was inside the vehicle, there are reasonable grounds to believe that the accused/petitioner is guilty of the alleged offence. He further submits that the possession being established, the rigor of Section 37 of the NDPS Act is applicable and therefore, bail ought not to be granted. He further submits that there are implicating materials available on record against the accused/petitioner. He further, after placing reliance under Section 436 A of the Cr.PC, submits that the maximum punishment of the alleged offence against the accused/petitioner being 20 years, the accused/petitioner is not entitled to be enlarged on bail on the ground of languishing in jail since last 3 years, 10 months and 19 days.

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8. I have given my prudent consideration to the arguments advance by the learned counsels for the contending parties and I have perused the materials available on record including the scanned copy of the case records received from the trial Court. I have also duly considered the case laws submitted at the bar.

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9 . In the present case, it appears that the accused/petitioner is the owner of the truck from which the contraband articles were seized and that he was also travelling in the said vehicle along with the two (2) co-accused while the contraband articles were found. It appears that the accused/petitioner was arrested on 17.06.2021 and upon completion of the investigation, the

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investigating agency submitted final complain (Offence Report) before the trial Court on 13.12.2021. Thereafter, the trial Court on 23.12.2021 framed charges against the accused/petitioner and the trial accordingly commenced.

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10. It appears that out of nine (9) prosecution witnesses, only two (2) prosecution witnesses have been examined till date. It further appears that the accused/petitioner is being languishing in the jail since last 3 years, 10 months and 19 days approximately. Upon careful scrutiny of the order sheet of the trial Court as available in the scanned copies of the case records, it appears that on a number of occasions, despite issuance of summons, no prosecution witnesses had turned up for giving their deposition. In fact, the first prosecution witness gave his deposition on 08.05.2023 i.e. that after 1 year, 4 months and 15 days since charges were framed by the trial Court. Pertinent to refer to the order of the trial Court dated 22.12.2023, wherein the trial Court has taken a serious note of the delay of the case due to the fact that except examination of one (1) prosecution witness on 08.05.2023, there was no progress in the case as the remaining prosecution witnesses were not turning up on the date fixed to give their depositions. In fact, the trial Court upon observing that two (2) accused persons, one of which is the present accused/petitioner are facing trial from the jail, directed the prosecution to take serious note of the delay and issued summons to the remaining prosecution witnesses for deposition of their evidence forthwith. Apt to reproduce the order dated 22.12.2023 passed by trial Court which reads as hereunder:

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“ Accused UTPs Gautam Roy and Saheb Sahani are produced from District Jail, Nalbari through V.C.

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Seen the accused and they are remanded to judicial custody till next date.

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Another accused Manish Kumar Singh is absent with step. Learned advocate for the absentee accused vide petition No. 3531/23 has assigned the cause of absence of the accused which is seen and allowed for today.

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Today, learned Advocate Mr. Mintu Ali has filed his Vokalatnama for accused Saheb Sahani. Hence, the learned legal aid counsel for UTP Saheb Sahani is no longer required to defend the case of the accused further.

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Inform all concerned accordingly.

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No PW is present. Prosecution shall take note of the delay of the case as the last evidence was recorded on 08.05.2023 and since then there is no progress in the case whereas two accused persons are in jail. However, issue summons to the remaining witness forthwith.

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Prosecution is to take steps.

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Fixing – 05.01.2024 for production /evidence of remaining PWs. ”

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11. Sadly, despite of the said order only one (1) prosecution witness has been examined. After the examination of the two witnesses, the remaining prosecution witnesses have not been examined till date. The aforesaid events clearly indicates that due to the fault on the part of the prosecution, the trial is getting unduly delayed for which the accused/petitioner is languishing in jail for the last 3 years, 10 months and 19 days approximately. Speedy trial is a necessary concomitant of the rights of liberty guaranteed under Article 21 of the Constitution of India.

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12. It is a settled law that when violation of Article 21 of the Constitution of India is established, statutory restrictions cannot restrain the power of this Court to grant bail. The argument of Mr. SC Keyal, learned Special Public Prosecutor (NCB), to the effect of applying Section 436 A of Cr.PC in order to calculate as what would be the formula to adopt to construe the reasonable length of

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custody pending trial in the context of Article 21 of the Constitution of India, in the opinion of this Court, would be jettisoning the fundamental protection guaranteed under Article 21 of the Constitution of India. As such, the said argument of the learned Special Public Prosecutor stands rejected.

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13. Reference is made to the decision of the Apex Court in the case of Hussainara Khatoon & Ors Vs Home Secretary, State of Bihar reported in (1980) 1 SCC 81, wherein the Apex Court had clearly held that the right to speedy trial of offenders facing criminal charges is implicit in the broad, sweep and content of Article 21 as interpreted by the Court. In the aforesaid Judgment, the Apex Court further observed that the procedure established by law for depriving a person of liberty cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of a guilt of such person and that no procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. Therefore, the question whether a trial is proceeding in a reasonably quick pace or not would depend in the facts and circumstances of each case.

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14. Reference is also made to the decision of the Apex Court in the case of Rabi Prakash Vs State of Odisha reported in (2023) SCC Online SC 1109, wherein the Apex Court in the context of a bail application in relation to an offence under the NDPS Act, 1985 has held that the conditional liberty under Article 21 of the Constitution of India must override the statutory embargo created under Section 37 (i) (b) (ii) of the NDPS Act, 1985. Apt to reproduce paragraph 4 of the said judgment which reads as hereunder:

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“ As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1^st condition stands complied with. So far as the 2^nd condition are:

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formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. 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 .”

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15. Reading of the aforesaid judgment, it is clear that the Apex Court has held that the condition under Section 37 of the NDPS Act, 1985 as regards formation of opinion as to whether there are reasonable grounds to believe the accused is not guilty shall not apply in a given case where the accused has suffered prolonged incarceration. It is worthwhile to note that in the aforesaid case of Rabi Prakash (Supra), the accused therein had spent more than 3 and a half years in custody.

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16. Reference is also made to the decision of the Co-Ordinate Bench of this Court in the case of Lalpianmawii Vs State of Assam in Bail Application No. 3068 of 2024 , wherein the Co-Ordinate Bench of this Court after noting various decisions of the Apex Court in this regard has held as hereunder:

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“14. From the above decisions so rendered by the Supreme Court, it is therefore clear that the right to speedy and expeditious trial is not only a vital safeguard to prevent undue and oppressive incarceration, but it is also to mitigate anxiety and concern accompanying the accusation, as well as to curtail any impairment in the ability of an accused to defend himself. There is also an overarching societal interest paving way for a speedy trial. The concept of speedy trial is amalgamated into Article 21 as an essential part of the fundamental right to life and liberty, guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed at the time of the arrest of the accused and the consequent incarceration which continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision, so that any possible prejudice that may result due to impermissible and avoidable delay since the time of the commission of the offence till the criminal proceedings consummates into a finality, could be averted. The speedy trial, early

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hearing and quick disposal are sine qua non of criminal jurisprudence. The overcrowded Court-dockets, the heavy volume of work and the resultant pressure on the prosecution and the Police, indubitably keeps the entire criminal jurisprudential mechanism under stress and strain. However, this cannot be an excuse to keep the accused in incarceration for an indefinite period of time. It does not serve any credit to the criminal justice system, rather it makes for a sad state of affairs.

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The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the Court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. First, it protects the accused against oppressive pre- trial imprisonment; secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost on memories dimmed by the passage of time, thus, impairing the ability of the accused to defend himself. It goes without saying that the consequences of a pre-trial detention are grave. It is a settled position as per criminal jurisprudence that an accused is presumed innocent, till proven otherwise. This Court cannot be unmindful that the burden of detention of such an accused frequently falls heavily on the innocent members of the family.”

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17. Keeping the aforesaid principle in mind, this Court cannot be unmindful of the fact that despite the trial Court having framed charges way back on 23.12.2021, out of the nine (9) prosecution witnesses, only two (2) has been examined till date, consequent of which the accused/petitioner has been languishing for the last 3 years, 10 months and 19 days approximately in jail. That being so, I cannot remain oblivious to the snail pace manner in which the trial is proceeding thereby causing protracted incarceration to the accused/petitioner which is in total violation and infringement of his most precious fundamental right guaranteed under Article 21 of the Constitution of India. Therefore, in the instant case, violation of Article 21 is clearly established. Resultantly, the rigor of Section 37 of the NDPS Act, 1985 cannot be made applicable for considering grant of bail to the accused/petitioner. Hence, I shall be failing in my duty if the accused/petitioner is not released forthwith.

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18. In the backdrop of the aforesaid circumstances, the accused/petitioner i.e.

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Gautam Rai is allowed to be released on bail in connection with the aforementioned case, on furnishing a bail bond of Rs.50,000/- (rupees fifty thousand) only, with two local sureties of the like amount, provided that one surety has to be a Government Servant, subject to the satisfaction of the Additional District and Session Judge, Rangia, Assam, under the following conditions:

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(i) that the petitioner shall appear before the Court of learned Additional District & Sessions Judge, Rangia, Assam, on each and every date to be fixed by the Court;

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(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

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(iii) That the petitioner shall submit his Aadhar card and PAN Card before the learned Additional District & Sessions Judge, Rangia, Assam; and

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(iv) that the petitioner shall not leave the jurisdiction of the learned Additional District & Sessions Judge, Rangia, Assam, without prior permission.

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19. Accordingly, the bail application stands allowed and disposed of.

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JUDGE

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Gautam Rai v. Union of India

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Gautam Rai v. Union of India

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