Nehru Chhetry Vs the State of Assam and Anr.

The instant criminal petition under Section 528, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 is preferred for setting aside and quashing of an Order dated 18.11.2021 and other subsequent orders passed by the Court of learned Additional District and Sessions Judge [FTC] No. 3, Kamrup [M], Guwahati [‘the Special Court’, for short] during the course of proceedings of NDPS Case no. 65/2020.

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In the First Information Report [FIR] lodged by a Sub-Inspector of Police, Basistha Police Station before the Officer In-Charge, Basistha Police Station on 05.07.2019, the petitioner was named as an accused along with another person named Sanjay Chhetry. The FIR was lodged stating inter alia that based on specific information regarding selling of contraband [brown sugar] at Nalapara area, the two accused persons were apprehended and from their possession, contraband [suspected to be brown sugar], weighing 12.73 gram, were recovered and seized. The FIR was registered as Basistha Police Station Case no. 1115/2019 under Section 21[b]/29, Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985.

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The petitioner was arrested and thereafter, forwarded to the Court of learned Chief Judicial Magistrate, Kamrup [M], Assam on 06.07.2019. On being so forwarded, the petitioner was remanded to custody. Subsequently by an Order dated 28.08.2019 of this Court passed in Bail Application no. 2455/2019, after 55 days in custody, preferred by the petitioner, the petitioner was allowed to be released on bail. One of the conditions for granting bail was that the

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petitioner shall not leave the territorial jurisdiction of the Special Judge under the NDPS Act, Kamrup [Metro], Guwahati without prior written permission from the said Court. After completion of investigation, the I.O. of Basistha Police Station Case no. 1115/2019 submitted a Charge-Sheet on 13.10.2019 finding sufficient materials against the petitioner and his co-accused. On submission of the Charge-Sheet, the case was registered as NDPS Case no. 65/2020 before the Special Court.

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On 11.02.2020, the Special Court after taking cognizance against the charge-sheeted accused persons, issued summons for their appearance. When summons were not returned after service, the Special Court on 18.11.2021 ordered for issuance of non-bailable warrant of arrest [NBWA] against both the charge-sheeted accused persons including the petitioner. On 12.01.2022, the accused persons were found absent and the NBWAs issued were found returned without execution. The Special Court then decided to issue order for proclamation and attachment against the accused persons. During the subsequent period up-to 07.10.2022, warrants were found not executed. On 07.10.2022, the Special Court ordered for issuance of fresh NBWAs/attachment against the charge-sheeted accused persons. As NBWAs/proclamation and attachment orders were not executed, the Special Court on the subsequent dates ordered for issuance of fresh NBWA/P&A and also called for personal appearance of the jurisdictional Officer In-Charge. When the case was posted on 09.04.2025, the jurisdictional Officer In-Charge who was directed to execute the NBWA, submitted a report stating that the NBWA issued against the petitioner had not been returned.

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On 29.07.2025, the other charge-sheeted accused person, Sanjay Chetry was produced before the Special Court upon execution of the NBWA issued against him. Taking note of the fact of non-execution of the NBWAs issued against the petitioner and an earlier Order dated 03.07.2023, the Special Court observed that the address of the petitioner available on the case record was not proper and accordingly, the petitioner was not found at the address. With such observation, the Special Court had ordered for filing of the case against the petitioner while keeping the warrants issued against him alive for execution.

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It is trite to state that every warrant of arrest issued by the Court remains in force until it is cancelled by the Court who issued it or unless it is executed. Therefore, warrants of arrest issued against the petitioner are still in force and alive for execution. It has been provided in Section 84, BNSS that if any Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, then such Court may order for publication of a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publication of the proclamation. The Court issuing a proclamation may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of property belonging to the proclaimed person.

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The petitioner has averred that in the year 2020, he shifted to his native place at Uttar Bagdogra, Darjeeling along with his parents and since then, he has been permanently residing at the said place in West Bengal. The petitioner has also averred that he has transferred his voting rights to his native place and

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on all his documents like Aadhaar card, etc., his address is mentioned as Uttar Bagdogra, District – Darjeeling, West Bengal.

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The petitioner has further averred that he has recently come to learn about issuance of the NBWA/P&A orders passed by the Special Court during the proceedings of NDPS Case no. 65/2020. The petitioner has undertaken that he is ready and willing to participate in the further proceeding of NDPS Case no. 65/2020. But it is the apprehension of him being taken into custody in execution of NBWAs issued against him, in the meantime, which has compelled him to approach this Court. It is further stated that in the event if the NBWAs issued against him are kept in abeyance for a period of at least ten days, the petitioner would appear before the Special Court and apply for bail.

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Mr. Goswami, learned Additional Public Prosecutor has submitted that the proceedings of NDPS Case no. 65/2020 is pending since 2020 only for the purpose of appearance of the two accused persons and it has not proceeded further from the stage of appearance. Therefore, early conclusion of the trial of NDPS Case no. 65/2020 is called for.

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Having regard to the fact situation obtaining in the case, briefly narrated above, and the undertaking given by the petitioner in the afore-stated manner, this Court is of the considered view that for the purpose of facilitating an expeditious conclusion of the proceedings of NDPS Case no. 65/2020, which is in the interests of the stakeholders including the prosecution side, the witnesses and the accused persons, the NBWAs issued against the petitioner by Order dated 18.11.2021 and all other subsequent orders passed by the Special Court

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can be kept in abeyance for a period of ten days for enabling the petitioner to appear before the Special Court, without the apprehension about executed of the NBWAs issued against him, and to apply for bail. Therefore, it is observed that the petitioner shall appear before the Special Court within a period of ten days and upon his appearance, he shall prefer an application seeking his release on bail. The Special Court shall consider the bail application, if filed, on its own merits and in accordance with law. It is made clear that in the event of failure on the part of the petitioner to appear before the Special Court with a period of ten days from today, the NBWAs issued against the petitioner shall automatically revive.

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The criminal petition is disposed of in the afore-stated terms.

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JUDGE

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Comparing Assistant

Nehru Chhetry v. the State of Assam and Anr.

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Nehru Chhetry v. the State of Assam and Anr.

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