Page No.# 1/7 GAHC010149642026 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2020/2026 MD JOINUL HOQUE S/O LATE AKADDAS ALI VILLAGE LAMARGAON NAGARIA P.S. PATHARKANDI DISTRICT SRIBHUMI ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, Z HUSSAIN,MS G TALUKDAR Advocate for the Respondent : PP, ASSAM, Page No.# 2/7 BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 12.08.2026 Heard Mr. HR Choudhury, learned Counsel for the petitioner. Also heard R.R. Kaushik, learned Additional Public Prosecutor for the State. 2. By this application, the petitioner has prayed for bail in connection with Special NDPS Case No. 52/2025 registered under Section 21(c)/25/29 of the NDPS Act, pending before the Special Judge, Sribhumi. The FIR in connection with which the petitioner was arrested was lodged on 25.05.2025 by the informant i.e. the Sub Inspector of Patharkandi PS stating inter alia that on an information that a bike was coming towards a particular area, the police personnel conducted a search operation and the bike bearing registration no. AS-10-D5548 was intercepted and the rider as well as the pillion rider were detained and on checking the bag pack that the pillion rider was carrying, the police found suspected contraband. The petitioner here was the rider of the said motor cycle. It is further stated that on spot verification the bag carried by the pillion rider was checked and upon a search in presence of the witnesses after complying with the provisions of law contrabands i.e. suspected heroine was recovered and on weighing the same, it was found of 324 gms. The police seized the articles and arrested both the accused persons including the petitioner being the rider and the other being the pillion rider. 3. The learned Counsel for the petitioner submits that the petitioner was arrested on 25.05.2025 and till date, the petitioner has been inside the jail. He further submits that the police upon completion of the investigation had submitted the charge sheet on 24.09.2025 and after completion of necessary Page No.# 3/7 procedures of law, the charges were framed against the petitioner on 12.11.2025 and the learned Session Judge took up the matter on 05.01.2026 and fixed for evidence. He further submits that summons were issued by the Trial Court and different dates were fixed for appearance of the prosecution witnesses. He also submits that till date none of the prosecution witnesses were examined, which were eight in numbers as arrayed in the charge sheet. He further submitted that summons were issued to the prosecution witness but they did not appear till date. He as such submits on the ground of prolonged incarceration and absence of any chance of completion of trial within a reasonable period, the bail be granted to the petitioner. To substantiate his argument, he placed the following judgment : (i) Rajadurai Vs. The State of Tamil Nadu, delivered by the Hon'ble Supreme Court in Special Leave Petition (Criminal No. 4729/2026) by which the Apex Court in the facts of the said case ordered for bail of the petitioner on the ground that although charges have been framed but not a single witness was examined by the prosecution. 4. On the other hand Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State submits that rigorous of Section 37 of the NDPS Act, cannot be done away with while granting bail to the accused person. He submits that the Court should take into account the twin conditions prescribed under the said section and further submits that the petitioner has not been incarcerated for long and further submits that present case is not a case wherein the petitioner has been incarcerated for a long period of time as he was arrested only in the month of May, 2025. He further submits that in such cases the investigation can continue for a year as provided under the law and there can be no finding that the petitioner has been languishing in jail for long. He further submits that although five to six days had gone by and the prosecution witness did not Page No.# 4/7 appear but on few dates some application were filed by the co-accused which had also resulted in delay in the trial. He also submits that in the instant case only eight witnesses were arrayed as such and the trial according to the learned Counsel will not take beyond a reasonable period of time. He also submits that although Article 21 of the Constitution of India has to be taken into account but statutory provision under the NDPS Act cannot also be given a go by. 5. To substantiate his argument, he had referred to the following cases: (i) Union of India versus Vigin K. Varghese reported in 2025 LiveLaw (SC) 1101, by which, the Apex Court had held that twin conditions should be fulfilled before granting bail to an accused person. (ii) State Of Punjab Versus Balraj Singh @ Billa, reported in 2026 INSC 618, a judgment delivered by the Honourable Apex Court by which, it was held that in the facts of the case, being in the jail for one year or so cannot be considered as long incarceration and that what would be the prolonged incarceration has not been settled by the Apex Court. It has also been observed that there should not be any conflict between the sovereignty of the country and personal liberty. (iii) State of Punjab versus Sukhwinder Singh @ Gora reported in 2026 INSC 411, by which, the Apex Court had observed that there has to be a satisfaction of the Court on the twin conditions provided under Section 37 NDPS before granting bail to the accused. (iv) Mohammad Raqibuddin Vs. Union of India, a judgment delivered by this Court in Bail Application No.07/2024, by which, this Court had held that although the under trial has a right to speedy trial but the provision contained under Section 436A Cr.P.C cannot be ignored. Page No.# 5/7 6. I have heard the Counsels and I have also gone through the records. As far as the merit of the case is concerned it is noticed that the police personnel has intercepted the bike which the petitioner was riding along with the co- accused from whose bag pack the contrabands were recovered and the same was found to be heroine weighing 324 gms which is a commercial quantity. However, it is seen that from the petitioner, no contrabands was recovered as such. The only allegation against the petitioner is that he accompanied the co- accused from whom contrabands were recovered, which was carried in the bag pack. It is also noticed that although the co-accused had the contrabands in his bag but the conscious possession, which is required under the law with regard to the person, who can be charged with and arrested is not prima facie found in the instant case with regard to the petitioner. Although, it is stated by the learned Counsel for the State that the petitioner and the co-accused were in constant touch but yet the fact remains that contrabands were not recovered from the possession of the petitioner. 7. It is a settled position of law that before granting bail to the accused person, the twin conditions provided under Section 37 NDPS Act has to be satisfied and they are:- (i) the Court has to be satisfied that there are reasonable grounds for believing that the accused person is not guilty of the offence. (ii) the Court has to be again satisfied that the accused person will not commit any offence while he is on bail. 8. As far as first condition is concerned, it has been held by the Hon'ble Supreme Court that reasonable grounds mentioned in the said section should be more than prima facie ground. It has been stated that contrabands were not Page No.# 6/7 found from the possession of the petitioner so it can be safely held that the petitioner was not involved in the offence. However, the same is the matter of trial. As far as the second condition is concerned, it is seen that no antecedents of the petitioner was stated by the prosecution in the forwarding report or any documents. This Court, however, cannot loose sight of the fact that Article 21 of the Constitution of India is available to the petitioner and it is also seen that the petitioner has been arrested more than a year back i.e. 25.05.2025 and although the trial of the case has started after framing of charge on 12.11.2025, the same had not proceeded much in view of the fact that none of the prosecution witnesses were examined. Further, it is noticed that the Hon'ble Supreme Court has also held that presence of statutory restrictions cannot per se oust the ability of the Constitutional Court to grant bail on the violation of the provision enshrined under the Constitution of India. 9. In view of the same, this Court therefore finds it fit that the petitioner be released on bail on furnishing of bail bond of Rs. 30,000/- with one local surety of the like amount to the satisfaction of Special Judge, Sribhumi under the following conditions: i) the petitioner will appear before the Trial Court as and when without fail on each and every dates. ii) the petitioner will not influence the witnesses connected with the case. iii) the petitioner will not tamper with the evidence at any point of time. iv) the petitioner will not go and associate with other co-accused of the case or any person or do any illegal activities during the period of the bail. v) if the petitioner is found to have violated any of the conditions mentioned above, the bail will be cancelled by the concerned Court. Page No.# 7/7 10. The observations made above will not be considered during any proceeding against the petitioner. 11. Petition is disposed of. JUDGE Comparing Assistant