Page No.# 1/8 GAHC010253602024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3672/2024 AYESHA BEGUM W/O ASAR UDDIN R/O VILL- LAMA RATABARI, P.O. AND P.S. RATABARI DIST. KARIMGANJ, ASSAM PIN-788735 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MR. S DUTTA Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 03.01.2025 Heard Mr. Sishir Dutta, learned Senior Counsel assisted by Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail to the accused/petitioner, who has been arrested in connection with Ratabari P.S. Case No. 240/2023, under Section 21 (C) & 25 of the NDPS Act, 1985 and corresponding Special (NDPS) Case No. 135 of 2023, pending before the Court of learned Sessions Judge, Karimganj. 3. Mr. Dutta, learned Senior Counsel for the petitioner, submitted that the present accused/petitioner is innocent and nothing has been seized from her conscious possession. As per the F.I.R. also, the contraband was seized from the house of the co-accused, who happened to be the husband of the accused/petitioner and she is no way involved in the alleged offence. More so, the accused/petitioner is a lady and she is languishing behind the bar along with her infant child and facing various problems in the jail premises. The charge- sheet in this case was submitted on 02.02.2024, but till date the trial could not be started due to non-appearance of one of the co-accused, who is shown as absconder in the charge-sheet, and thus there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the Page No.# 3/8 prosecution and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. 4. In support of his case, Mr. Dutta, learned Senior Counsel, also relied on a decision of this Court passed in Bail Appln. No. 1733/2024, dated 28.10.2024, wherein this Court has granted bail to the accused therein considering the observations made by the Hon’ble Supreme Court in the following decisions: (i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533 (ii) Shariful Islam @ Sharif Vs. The State of West Bengal [SLP(Crl) 4173/2022 (Decided on 04.08.2022)] (iii) Mohd Muslim @ Hussain Vs. State (NCT of Delhi) [2023 LiveLaw (SC) 260] 5. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard this is the subsequently bail application preferred by the present accused/petitioner after rejection of her earlier bail application by this Court on perusal of the Case Diary and also considering the materials available against the present accused/petitioner. He further submitted that there is no laches or delay on the part of the prosecution and the trial could not be proceeded only due to the absence of one of the co-accused, who has been shown as an absconder in the charge-sheet. However, the learned Special Judge took every initiative to procure the attendance of the co-accused and NBWA has already Page No.# 4/8 been issued against him. He further submitted that as the case is of commercial quantity, rigor of Section 37 of NDPS Act will follow and hence, her prayer may not be considered only on the ground of period of incarceration. 6. Mr. Baruah further relying on a decision of Hon’ble Apex Court passed in Criminal Appeal No. 5544 of 2024, arising out of SLP (Crl.) No. 12120 of 2024 [Narcotics Control Bureau Vs. Kashif] submitted that the Hon’ble Supreme Court has discussed in detail in regards to the compliance of Section 52A & 42 of the NDPS Act in the said judgment, wherein it is held that non- compliance of the said provision of NDPS Act may not be the sole ground for considering the bail application. 7. Mr. Dutta, learned Senior Counsel for the petitioner, submitted in this regard that in the said judgment, as relied by the learned Additional Public Prosecutor, there is no discussion in regards to the period of incarceration and only the compliance of Section 52A & 42 has been discussed in the said case, whereas in the present case, the long incarceration of the accused/ petitioner may be considered since the prosecution could not initiate the trial till date. 8. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the relevant annexures and the other documents annexed along with the petition as well as in the record. 9. It is a fact that the present accused/petitioner, along with others, were arrested in connection with this case on the allegation of recovery of commercial quantity of the contrabands from their conscious possession and accordingly, in the present case, rigor of Section 37 NDPS Act will follow. Page No.# 5/8 10. For ready reference, Section 37 NDPS Act is extracted hereinbelow: “37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.” 11. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that she is not likely to commit any offence while on bail. But, from the materials available in the case record, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or she is not likely to commit any offence while on bail. 12. But, in the same time, it cannot be denied that the accused/petitioner is behind the bar for last more than 412 days along with her infant child and till then, the prosecution could examine any witnesses and the case is at the stage of appearance. It also cannot be denied that to examine all the witnesses, the prosecution may take a considerable period for completion of the trial. 13. In the case of Rabi Prakash (supra), the Apex Court has granted bail to the accused with a view that “the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Page No.# 6/8 Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)9ii) of the NDPS Act.” 14. Similar view has been expressed by the Hon’ble Apex Court in the case of Shariful Islam @ Sharif (supra), wherein also, considering the length of detention and also considering the aspect that there is no likelihood of completion of trial in near future, the bail was granted to the petitioner. 15. The same view is also expressed in another recent judgment of Division Bench of Hon’ble Apex Court in Mohd Muslim @ Hussain Vs. State (NCT of Delhi), reported in 2023 LiveLaw (SC) 260, wherein, in paragraph No. 23 of the said judgment, it has been held as under: “23. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal” (also see Donald Clemmer’s ‘The Prison Community’ published in 1940). Incarceration has further deleterious effects – where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.” 16. In the instant case, it is seen that there are some materials available in the Case Diary and on the basis of which, the Investigating Officer has also filed the Charge-Sheet against the present accused/petitioner showing her involvement in the alleged offence. But it is also seen that in spite of filing of the charge- sheet on 02.02.2024, the prosecution could not examine any witness, though it Page No.# 7/8 a fact that the accused/petitioner is behind the bar for more than 412 days. Thus, in such a situation, it is unlikely that the case will be resolved in the near future. 17. In view of above and also considering the observations made by the Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more 412 days may be considered as a ground for bail with the conditional liberty considering the fundamental right guaranteed under Article 21 of the Constitution and, therefore, I am inclined to grant bail to the present accused/petitioner. 18. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees twenty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Karimganj, the accused/petitioner, namely, Ayesha Begum, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Karimganj on each and every date to be fixed by the Court; (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 Page No.# 8/8 the Court or to any police officer; and (iii) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Karimganj, without prior permission. 19. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant