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Gauhati High Court · body

2007 DIGILAW 700 (GAU)

Jaiprakash v. Union of India and Ors.

2007-10-11

I.A.ANSARI

body2007
1. This is an application made under section 439, Cr.PC seeking bail by the accused-petitioner, namely, Sri Jai Prakash Singh, in connection with Special (NDPS) Case No. 05/2005, arising Out of DRI Guwahati Case No. 2/NARC/GANJA/DRI/GAU/2005-2006, dated 5.9.2005, under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Perused the above application and materials on record. 3. Heard Mr. B.D. Konwar, learned counsel for the, accused-petitioner and Mr. C. Barua, learned Assistant Solicitor General. 4. The accused-petitioner has sought for bail, primarily, on the ground that the trial, arising out of the case aforementioned, is not yet over and in the interest of justice the accused-petitioner needs to be enlarged on bail. 5. In the present case, the accused-petitioner was allegedly apprehended along with 11 others, on 5.9.2005, by police, while they were carrying, in three number of trucks, Ganja (Cannabis) weighing 9208.60 kg., 8 numbers of A.K. Series Rifles, 12 rounds' of ammunitions and 10 numbers of extra-magazine. When the accused-petitioner was so apprehended along with his associates, they, according to the police, a were wearing army uniform pretending to be_army personnel. 6. Upon investigation into the FIR, which was lodged, in this regard, the police submitted charge sheet. In course of time trial against, the accused-petitioner and his associates commenced by framing charges against them. It was during the course of the trial that the accused- petitioner had made an application for bail and the learned Sessions Judge, Sonitpur, rejected the same by order, dated, 22.3.2007, on the ground that the accused is a resident of another State and there was every likelihood of his -absconding if he was allowed to go on bail. 7. From the facts set out above, what clearly transpires is that the accused-petitioner is facing trial, under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act'), on having been allegedly found, inter alia, in possession of 9208.60 kg. of Ganja (Cannabis). 7. From the facts set out above, what clearly transpires is that the accused-petitioner is facing trial, under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act'), on having been allegedly found, inter alia, in possession of 9208.60 kg. of Ganja (Cannabis). Under section 20 of the NDPS Act, whoever, in contravention of the provisions of the Act or any rule or order made or condition of licence granted there under, is found in possession of cannabis or in the inter-State export thereof and if the quantity of the cannabis involved is commercial quantity, then, he shall be liable to suffer rigorous imprisonment for a term, which shall not be less than ten years but which may extend to twenty years and shall also be liable to pay fine, which shall not be less than one lakh rupees, but which may extend to two lakh rupees. Section 36A(4) of the NDPS Act also makes it clear that when an offence, involving commercial quantity is alleged to have been committed by a person, the reference of 90 days, which occurs in section 167(2), Cr.PC shall be construed as reference to 180 days. Thus, when a person is accused of having committed an offence punishable under section 20 of the NDPS Act, involving Ganja of commercial quantity, statutory period of detention, without submission of charge sheet, can be as long as 180 days. 8. Moreover, section 37 of the NDPS Act makes it further clear that an accused shall not 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. 9. 9. From a bare reading of the provisions of law as contained in sections 20, 36A(4) and 37(1)(b), what clearly transpires is that when a Public Prosecutor opposes a bail application, a person, accused of an offence committed under the NDPS Act, cannot be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence, while on bail. In the face of these provisions, there can be no escape from the conclusion that the accused-petitioner could not have been released on bail within the statutory period unless the court was satisfied that he was not guilty of the offence, which he was being accused of. 10. In the light of the law discussed above, when I turn to the facts of the case at hand what attracts the attention is that the materials on record clearly reveal that the learned trial court has already framed charge against the accused-petitioner and the witnesses are, now, required to be examined. The accused has not contended that there were no materials to frame charge against him. When sufficient materials to frame charge against the accused were available on record showing prima facie that the accused had been found in possession of commercial quantity of cannabis and he is also prima facie seen to have been found involved in inter-State export thereof. Section 37(1)(b)(ii) did not permit the learned trial court to allow the accused to go on bail, for, the learned trial court could not have, in the face of such materials, held that the accused-petitioner is not guilty of the offences aforementioned. In the circumstances as indicated hereinbefore, merely because of the, fact that there has been delay in conducting the trial, the accused, in the light of the facts as discernible from the materials on, record, cannot be allowed to go on bail at this stage, particularly, when it is not in dispute that the charge sheet had been submitted against the accused-petitioner within the said statutory period of 180 days. 11. 11. What emerges from the above discussion is that when a person is prima facie shown to have committed an offence punishable under the section 20 of the NDPS Act involving commercial quantity of cannabis, cannot be allowed to go on bail during the progress of the trial merely because of the fact that there has been some delay in conducting the trial. 12. What also emerges from the above discussion is that though the accused person's prayer for being allowed to go on bail could not have been rejected merely on the ground that he comes from a State other than the State of Assam, the fact remains that the relevant provisions of law, as discussed hereinabove, do not empower the court to allow the accused-petitioner to go on bail. Considered, thus, it is clear that the order, rejecting bail, cannot be interfered with. 13. Considering, therefore, the matter in its entirety and in the interest of justice, this application for bail is hereby rejected. The learned trial court is, however, directed to expedite the trial and shall, for this purpose, hold, if necessary, day-to-day trial. 14. The bail application shall stand disposed of in terms of the above directions. 15. Send a copy of this order to the Sessions Judge, Sonitpur, Tezpur. 16. Bring the above directions to the notice of Deputy Registrar (Judicial).