Case title: 

Anil Malakar versus the State of Assam

Date of Order: 

01.12.2023

Bench: 

Learned Special Judge, Hojai, Assam

Parties: 

Petitioner: Anil Malakar

Respondent: The State of Assam

SUBJECT

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is an act of the Parliament of India that regulates the production, possession, sale, and use of narcotic drugs and psychotropic substances in the country. It was enacted to address the growing problem of drug abuse and trafficking in India. The NDPS Act provides a comprehensive legal framework to deal with the menace of illegal drugs and substances. The primary objective of the NDPS Act is to establish a strict regime for controlling and regulating narcotic drugs and psychotropic substances.

IMPORTANT PROVISIONS

Narcotic Drugs and Psychotropic Substances Act, 1985

• Section 20(C)
• Section 37
• Section 67

OVERVIEW

• The present case is with regards to an application made under Section 439 Cr. P.C. seeking bail by the accused/petitioner, Anil Malakar, who was arrested on 10.05.2023 under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
• On 13.11.2022 at about 5.15 am, 29.030 kg of Ganja were recovered from the Agartala Deodhar Express but no accused/ suspect was found at the place of occurrence. The petitioner was implicated based on the statement of two witnesses recorded under Section 161 Cr.P.C. and the petitioner was arrested six months after the date of FIR and the alleged contraband was found in a train.

ISSUE RAISED

• Whether the accused/petitioner, Anil Malakar, is entitled to the grant of bail under Section 439 of the Code of Criminal Procedure?

ARGUMENTS ADVANCED BY THE PETITIONER

• The counsel for the petitioner, Mr. A W Aman argued that the petitioner is entitled to bail as the confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible even at the stage of consideration of bail.
• The counsel cited the cases, State vs Pallulabid Ahamed Arimutta & Others reported in 2022 12 SCC 633, and Tofan Singh vs State of Tamil Nadu reported in (2021) 4 SCC 1 to support his arguments.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The learned Additional Public Prosecutor, Mr. Das, arguing on behalf of the state vehemently opposed the grant of bail and held that an accused cannot be enlarged on bail only on the ground of long incarceration.
• The Supreme Court case of Narcotics Control Bureau –VS- Mohit Agarwal, 2022 SCC OnLine 891 was cited to substantiate his arguments.

JUDGEMENT ANALYSIS

• The Gauhati High Court allowed the petitioner to be released on bail on executing a bail bond of Rs. 1,00,000/- (One lakh) with two suitable solvent sureties of like amount to the satisfaction of the learned Special Judge, Hojai, Assam.
• The bail granted to the petitioner was subject to several conditions such as, the petitioner shall not leave the territorial jurisdiction of learned Special Judge, Hojai, Assam, without prior written permission from him, the petitioner shall not hamper and tamper with the evidence of the case, etc. and many more.
• The court viewed that there are reasonable grounds that the petitioner is not guilty of any offence under Section 29 of the NDPS Act, 1985, and hence by invoking his right to Article 21 of the Constitution of India the petitioner can be released on bail with strict conditions.
• The court held that the confessional statement/voluntary statement of the co-accused cannot be a ground for having a reasonable belief that the accused is guilty of the offense.
• It was also pronounced that the ground of undue delay in trial can also be a ground for granting bail if the court is satisfied that there is no likelihood of completion of trial shortly. Thus, such ground of inordinate delay shall depend on the facts of each case and the cause of delay is also required to be noted.

CONCLUSION

The grant of bail in cases related to the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which governs offenses related to narcotics and psychotropic substances in India, is subject to the provisions of the Act and the discretion of the court. Section 36A of the NDPS Act, 1985, mandates that the offenses under the Act are triable by a Special Court. In the opinion of the Hon’ble Gauhati High Court, this mandate of the legislature is to achieve the object that trials are completed at the earliest possible time since the conditions of bail and other provisions under the Act, are very stringent. It is also well settled that a reasonable, fair and just procedure in a criminal trial is a constitutional obligation on the part of the State. A speedy trial is also one of the dimensions of the fundamental right to life under Article 21 of the Constitution of India.