Page No.# 1/5
GAHC010219402024
2024:GAU-AS:11960
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3224/2024
PRABHA SHANKAR TIWARI
S/O SWAMI DAYAL TIWARI, R/O 551 K/252, BHILAWAN, P.O. AND P.S.-
ALAMBAGH, DIST- LUCKNOW, UTTAR PRADESH, PIN-226005
VERSUS
THE UNION OF INDIA AND ANR
REPRESENTED BY THE DEPUTY SOLICITOR GENERAL OF INDIA
2:NARCOTICS CONTROL BUREAU GUWAHATI ZONAL UNIT
VIP ROAD
RUPKONWAR PATH
CHACHAL KHANAPARA
GUWAHATI-78102
Advocate for the Petitioner : MR. S MITRA, MR S.MITRA,MR. R. RAMEEZ,MR A K BORO
Advocate for the Respondent : DY.S.G.I., SC, NCB
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 29.11.2024.
Heard Mr. S. Mitra, learned counsel for the accused and also heard Mr.
S.C. Keyal, learned Standing Counsel, NCB, for the respondent.
Page No.# 2/5
2. This application, under Section 483 of the Bharatiya Nagarik Surakhya
Sanhita 2023, is preferred by accused, namely, Prabha Shankar Tiwari, who
has been languishing in jail hazot, since 25.09.2021, in connection with the
NDPS Case No.49/2022, corresponding to NCB Crime No.25/2021, registered
under Sections 8(c)/21(c)/29/35/53A/54/60/66/ 67/68/69 of the NDPS Act,
pending before the Court of learned Additional Sessions Judge No. 2,
Kamrup(M) at Guwahati, for grant of bail.
3. The above noted case has been registered on the basis of a
complaint, lodged by one Anil Kushwaha, Intelligence Officer, NCB Guwahati.
4. The gravamen of the allegation against him is that on 05.09.2021,
acting on a tip off; the complainant and other staffs of NCB having intercepted
a truck, bearing Registration No. UP 32 HN 9008, at about 03.00 AM, near
Madanpur Toll Plaza, Guwahati and recovered 18,989 bottles of Codeine based
cough syrup, manufactured by Abbott Healthcare Pvt. Ltd. of Himachal Pradesh
and apprehended accused Imran and Kamal Kumar and the present accused is
involved in the same. Thereafter, on 25.09.2021, while accused Prabha
Shankar Tiwari came to Guwahati, he was arrested by NCB and forwarded to
jail hazoot. Thereafter, investigation was carried out and after completion of
investigation, Final Complaint was lodged before the learned Court below
against the accused to stand trial under Sections 21(c)/29 of the NDPS Act.
5. Mr. S. Mitra, the learned counsel for the accused, submits that having
been arrested on 25.09.2021, he is behind the bars for 3 years 2 months and
despite direction of this Court the learned trial Court could not complete the
trial and out of 11 cited witnesses, 4 have been examined so far. Mr. Mitra
submits that charge was framed against the accused on 12.04.2023, thereafter
on several occasions the prosecution side had failed to produce the witnesses,
Page No.# 3/5
for which the accused is suffering a lot. There is glaring lapse on the part of
the prosecution side in production of witnesses. Mr. Mitra further submits that
there is no immediate prospect of conclusion of trial and because of prolong
incarceration, his right granted under Article 21 of the Constitution of India is
violated and therefore, it is contended to allow the petition. Mr. Mitra has
referred following decision in support of his submission:-
(i) Ankur Chaudhury vs. State of Madhya Pradesh in
Special Leave to Appeal (Crl.) No. 4648/2024.
6. Per contra, Mr. S.C. Keyal, learned Standing Counsel for the
respondent NCB, submits that there is some delay in trial, but the NCB is not
alone responsible for the same, as sometimes the Presiding Judge was also
absent and that trial is going on and four witnesses have already been
examined. Mr. Keyal also submits that the accused is a habitual offender and
another case being NDPS Case No. 47/2022, under Sections 21(c)/29 of the
NDPS Act is pending against him, wherein also commercial quantity of
contraband substances are involved. And given the quantity of contraband
substances recovered in the cases involved in the both the cases and given the
antecedent of the accused, he cannot be granted bail on this count alone. The
accused has to satisfy the requirement of Section 37 of the NDPS Act and he
has failed satisfy the twin requirement of said section. In support of his
submission, Mr. Keyal has referred following decision:-
(i) State by Inspector of Police vs. B. Ramu reported in
2024 0 Supreme (SC) 130.
7. Having heard the submissions of learned Advocates of both sides, I
have carefully gone through the petition and the documents placed on record
Page No.# 4/5
and also perused the scanned copy of the case record, and the status report
received from the learned Court below and the case laws referred by learned
Advocates of both sides.
8. It appears that the learned Court below had framed the charge
against the accused on 12.04.2023. Since then more than a year elapsed and
the prosecution side has been able to examine only four witnesses out of 11
cited witnesses. The Court below was also vacant for some time, and on some
occasions no order was passed to summon the witnesses and on some
occasions, no step was taken by the NCB to summon the witnesses.
9. In the given factual backdrop and considering the submission of Mr.
Mitra, the learned counsel for the accused, this Court is of the view that the
delay cannot be termed as inordinate delay, so as to violate the right to speedy
trial of the accused. It is well settled that mere delay in trial pertaining to grave
offences cannot be a ground to grant bail.
10. Indisputably, 18,989 bottles of Codeine based cough syrup were
recovered here in this case from the truck. That being so, the accused has to
satisfy the twin requirement of Section 37(1)(b)(ii) of the NDPS Act, that there
are reasonable grounds for believing that the accused is not guilty of such
offence and that he is not likely to commit any offence while on bail. But, from
the materials and evidence brought on record this court is unable to derived
satisfaction that the accused has been able to satisfy the said requirement.
11. Though it is argued by Mr. Mitra, referring to a decision of Hon’ble
Supreme Court in Ankur Chaudhury(supra) that conditional liberty
overriding the statutory embargo created under Section 37(1)(b) of the NDPS
Act, yet, it appears that in the said case bail was granted to the accused on
Page No.# 5/5
account of not supporting the prosecution case by the punch witnesses. This is
not the position in the case in hand. Four witnesses have already been
examined and some vital witnesses are yet to be examined.
12. Under the given factual background discussed herein above and also
considering nature and gravity of the offence and antecedent of the accused,
this Court is of the view that no case for granting bail to the accused is made
out.
13. In the result, the petition stands dismissed.
JUDGE
Comparing Assistant