Allowed

Sri Zakir Hussain v. Union of India

Karnataka HC23 Sept 2024CRL.P/5782/2024

Case brief

AI extract

What is this about?

Bail granted to accused in NDPS case after 3.5 years of incarceration due to trial delays, relying on Supreme Court precedents that right to speedy trial and liberty are sacrosanct and may override statutory bail restrictions when trial progress is stalled.

What did the court decide?

Petitioner enlarged on bail subject to personal bond of Rs.1,00,000/- with two sureties, furnishing residential address proof, not tampering with witnesses, not leaving jurisdiction without permission

Sri Zakir Hussain Vs Union of India — Narcotics (NDPS) | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 23^RD DAY OF SEPTEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ CRIMINAL PETITION NO. 5782 OF 2024

¶6

BETWEEN:

¶7

SRI. ZAKIR HUSSAIN, AGED ABOUT 37 YEARS, S/O MOAHMMED HUSSAIN, R/AT UPPARPALAYA, TURIGERE POST, ADIYAR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT, KARNATAKA

¶8

…PETITIONER

¶9

(BY SRI. ISMAIL ZABIULLA, ADV., FOR SRI MOHAMMED NAWAZ SHARIFF, ADVOCATE)

¶10

AND:

¶11

Digitally signed by LAKSHMI T Location: High Court of Karnataka

¶12

UNION OF INDIA, BY NCB POLICE STATION, REPRESENTED BY SPP, HIGH COURT BUILDING 560 001

¶13

…RESPONDENT

¶14

(BY MS. SHRIDEVI BHOSALE MARUTI, ADVOCATE)

¶15

THIS CRL.P IS FILED U/S 439 OF CR.PC PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE SPL.C.NO.1703/2021 ARISING OUT OF NCB F.NO.48/1/5/2021/BZU REGISTERED FOR THE OFFENCE P/U/S 8, 8(C), 22 R/W 20(B),(ii), 23, 27(A), 28 AND 29 OF NDPS ACT, 1985.

¶16

¶17

NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶18

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶19

CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

¶20

ORAL ORDER

¶21

The petitioner/accused No.2 is before this Court in this petition under Section 439 of Cr.P.C. praying to enlarge him on bail in a case pending before the Court of XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bangalore in Special C.C.No.1703/2021, wherein he along with three other accused are being tried for offences punishable under Sections 8(c), 22 r/w 20 (b) (ii)(c), 23, 27(A), 28 and 29 of the NDPS Act. 1985.

¶22

Heard the rival contentions and perused the material on record.

¶23

The grounds on which the present petition is filed are that, the petitioner is languishing in judicial custody since 09.04.2021 i.e., for nearly 3 1/2 years, the trial being held in snail pace, wherein, only three prosecution witnesses are examined till today, Accused No.4 has been granted

¶24

3 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶25

bail by this Court on 03.07.2023 i.e., subsequent to the rejection of the bail petition of the present petitioner and lastly petitioner's mother is a cancer patient and his daughter is deaf and dumb by birth.

¶26

Learned counsel appearing for the petitioner has relied on the following decisions of the Hon'ble Apex Court:-

¶27

1. MANISH SISODIA VS. DIRECTORATE

¶28

OF ENFORCEMENT (2024 1 NSC 595) SLP (Criminal) No.8772/2024) DD 09.08.2024.

¶29

2. SHEIKH JAVEED IQBAL @ ASHFAQ

¶30

ANSARI @ JAVED ANSARI VS . STATE OF UTTAR PRADESH (CRIMINAL APPEAL No.2790/2024) DD 18.07.2024.

¶31

3. ANKUR CHAUDHARY Vs. STATE OF MADHYA PRADESH (SLA (CRIMINAL) No.4648/2024) DD.28.05.2024.

¶32

4 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶33

Prayer for bail has been vehemently opposed by the learned CGSC appearing for respondent/NCB. She contended that this Court has considered the entire facts and circumstances of the case and noticing that there is a prima facie case against the petitioner for having committed a serious offence, dismissed the bail petitions on two occasions i.e., in Criminal Petition No.3921/2021 dated 14.07.2021 and Criminal petition No.2612/2022 dated 15.07.2022. She contended that the grounds now urged by the petitioner are not sufficient to enlarge him on bail, in view of a prima facie case against him and the bar under Section 37 of the NDPS Act, to grant bail.

¶34

Learned CGSC would further contend that in the present case, the trial has already begun and three official witnesses are examined and since the remaining official witnesses are posted at different places on deputation, the prosecution may need a reasonable time to examine the said witnesses and conclude the trial.

¶35

5 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶36

In Criminal Petition No.3921/2021 preferred by the petitioner, this Court considering the over all facts and circumstances of the case, dismissed the said petition on 14.07.2021 observing that 'at this stage, it is not a fit case to enlarge the petitioner on bail, as the investigation was still in progress.' Subsequent to completion of the investigation, petitioner preferred criminal petition No.2612/2022. The said petition was dismissed on merits on 15.07.2022. It was observed that the ganja seized in this case is commercial quantity and the accused has been found transporting ganja in his vehicle and the material collected was sufficient to show that he had the knowledge of the nature of substance concealed in the gunny bags beneath the coconuts.

¶37

It is not in dispute that the petitioner/accused No.2 was arrested on 09.04.2021 and he is in judicial custody since then, i.e., for more than three years five months. Charges in this case came to be framed on 29.10.2022. As on today, three witnesses are examined. The last

¶38

6 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶39

witness CW.3 was examined as PW.3 on 06.10.2023. According to the prosecution, the official witnesses are deputed at different places, hence, they could not be examined.

¶40

It is relevant to place reliance on the judgment in ' MANISH SISODIA' (supra), Paragraphs 49 to 53 are extracted hereunder :-

¶41

49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.

¶42

50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.

¶43

51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu and Others v.

¶44

7 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶45

Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb and Satender Kumar Antil v. Central Bureau of Investigation and Another . The Court observed thus:

¶46

"19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

¶47

52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus:

¶48

"10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

¶49

"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial

¶50

8 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶51

custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox):

¶52

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.""

¶53

53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception."

¶54

9 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶55

In ' ANKUR CHAUDHARY' (supra) wherein the accused in the said case was charged under the provisions of the NDPS Act, the Hon'ble Apex Court has observed that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of

¶56

the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act, may in such circumstances, be considered.

¶57

It is also relevant to refer to paragraph 32 of the decision of the Hon'ble Apex Court in SHEIKH JAVED IQBAL (supra) which reads as under :-

¶58

"32. This Court has, time and again, exmphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the

¶59

10 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶60

accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us."

¶61

The learned CGSC has contended that in MANISH

¶62

SISODIA, the charge sheet contained voluminous documents and there were number of witnesses and since the trial was not commenced, the Apex Court considering the long period of incarceration undergone by the accused, granted bail.

¶63

11 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶64

It is true that the trial has commenced in the present case. However, since 06.10.2023 there is no progress in trial. Accused is under incarceration since 09.04.2021. As observed by the Apex Court in the above decisions, right to speedy trial and right to liberty are sacrosanct rights. The Apex Court has observed that on denial of these rights, the Trial Court as well as the High Court ought to have given due weightage to these factors, considering the fact that there is uncertainity in the duration, to complete the trial.

¶65

Learned counsel appearing for the petitioner has also drawn the attention of the Court to the complaint filed under Section 36 of the NDPS Act, 1985, to contend that the petitioner is only the owner-cum-driver of the vehicle which was hired for transporting the coconuts in which the contraband was concealed in gunny bags beneath the load of coconuts. He contended that his vehicle was hired for

¶66

Rs.60,000/- to transport coconuts.

¶67

12 -

¶68

NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶69

The Hon'ble Apex Court in MANISH SISODIA's Case while considering the compliance of the twin conditions specified in Section 45 of the PMLA Act, pari material to Section 37 of the NDPS Act, has observed at paragraph 37 of the said judgment as follows :-

¶70

"37. Insofar as the contention of the learned ASG that since the conditions as provided under Section 45 of the PMLA are not satisfied, the appellant is not entitled to grant of bail is concerned, it will be apposite to refer to the first order of this Court. No doubt that this Court in its first order in paragraph 25, after recapitulating in paragraph 24 as to what was stated in the charge-sheet filed by the CBI against the appellant, observed that, in view of the aforesaid discussion, the Court was not inclined to accept the prayer for grant of bail at that stage. However, certain paragraphs of the said order cannot be read in isolation from the other paragraphs. The order will have to be read in its entirety. In paragraph 28 of the said order, this Court observed that the right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 Cr.P.C. and Section 45 of the PMLA. The Court held that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted that he be ensured and given a speedy trial. It further

¶71

13 - NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶72

observed that when the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, would be guided to exercise the power to grant bail. The Court specifically observed that this would be true where the trial would take years. It could thus clearly be seen that this Court, in the first round of litigation be.tween the parties, has specifically observed that in case of delay coupled with incarceration for a long period and depending on the nature of the allegations, the right to bail will have to be read into Section 45 of PMLA."

¶73

It is not the case of prosecution that petitioner is a habitual offender. He has no criminal antecedents. Hence, there is no likelihood of petitioner committing similar offence. He has undertaken to offer sufficient surety to ensure his regular presence before the Trial Court.

¶74

Hence, in view of the above discussion, petitioner can be admitted to bail by imposing suitable conditions. Accordingly, the following:-

¶75

ORDER

¶76

14 -

¶77

NC: 2024:KHC:39329 CRL.P No. 5782 of 2024

¶78

i) Petition is allowed.

¶79

ii) Petitioner/accused No.2 in Special C.C.No.1703/2021 pending on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bangalore, shall be enlarged on bail subject to following conditions:-

¶80

a. He shall execute a personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh Only) with two Sureties for the like sum to the satisfaction of the learned Sessions Judge.

¶81

b. He shall furnish proof of his residential address and shall inform the Court if there is change in the address.

¶82

c. He shall not tamper with the prosecution witnesses/evidence either directly or indirectly.

¶83

d. He shall not leave the jurisdiction of the trial Court without prior permission of the learned Sessions Judge.

¶84