Page No.# 1/9 GAHC010090322025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1349/2025 PREMPAL SINGH AND ANR S/O LATE RAJVEER SINGH R/O VIL- DAUGAVAN P.O. AND P.S. DIBAI DIST. BULANDSHAHR,UTTAR PRADESH, PIN-203393 2: RAMU @RAMU KUSHWAHA S/O SHRI RAJENDRA SINGH R/O VILL-DAUGAVAN P.O.AND P.S. DIBAI DIST. BULANDSHAHR UTTAR PRADESH PIN-20339 VERSUS THE UNION OF INDIA REPRESENTED BY SC, NCB Advocate for the Petitioner : MR. A PAUL, Advocate for the Respondent : SC, NCB, Page No.# 2/9 BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 06.06.2025 Heard Mr. A. Paul, learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel representing the NCB. 2. By filing this application u/s 483 BNSS,2023, the petitioners namely Prempal Singh and Ramu @ Ramu Kushwaha have sought for bail in connection with NDPS Case No.24/2021 (corresponding to NCB Crime No.07/21) under Sections 20(b)(ii)(C)/29 of the NDPS Act,1985, pending in the Court of Special Judge, Rangia, Kamrup. 3. The brief fact of the case is that on 28.03.2021, about 1586.00 Kgs of ganja were recovered from a truck bearing No.HR-55N-2597 at NH-15, Baihata Chariali, Kamrup(R), Assam whereby the present petitioners were detained. On the next date i.e. on 29.03.2021, two other persons were arrested namely Ajay Kumar Singh and Md. Alauddin at Sonapur Toll Plaza in connection with the instant case i.e. NCB Crime No.07/21. Thereafter, all the accused persons were arrested and the case was initiated against them. 4. Learned counsel for the petitioners has submitted that both the petitioners have been languishing in judicial custody for more than 4 (four) years since their arrest on 28.03.2021. No any contraband items were recovered from the possession of the present petitioners. Though, charge-sheet has been laid and the charge has been framed against the petitioners, however, the prosecution has failed to complete the trial during such long period of 4(four) years. As such, the learned counsel for the petitioners submits that the petitioners may be enlarged on bail on the ground of prolonged incarceration. Page No.# 3/9 5. In response, learned counsel representing the NCB has vehemently opposed in granting bail to the petitioners by stating that the earlier bail application preferred by the petitioners was rejected by this Court after considering the involvement of the petitioners on merits. There are no such grounds shown by the petitioners for considering their subsequent bail application on any new grounds except prolonged incarceration. According to Ms. Deka, the contraband items were recovered from the conscious possession of the petitioners. Hence, Section 37 of the NDPS Act is attracted here in this case. 6. In support of her submission, learned counsel representing the NCB has relied on the following case laws – a) (2005) 1 Supreme 285 [Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Papu Yadav and Anr] b) (2022) O Supreme SC 56 [ NCB Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr. ] c) BA 3130/2024 [Mahendra Singh Vs. Union of India] 7. Having heard the submission of learned counsel for the parties and on perusal of the trial court record, it reveals that though the accused petitioners were arrested on 30.03.2021 and subsequently, charge-sheet has been laid within stipulated time and out of 13 (thirteen) witnesses, three witnesses have already been examined. 8. It is true that there is some delay in completion of the trial. However, it is also not in dispute that commercial quantity of ganja was recovered from the truck in which both the accused petitioners were travelling. The accused petitioners were totally silent why such huge quantities of ganja were carrying by them in the said vehicle. Page No.# 4/9 9. In Gurbaksh Singh Sibbia and others Vs. State of Punjab, (1980) 2 SCC 565, the Hon’ble Supreme Court as held that – “It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.” 10. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav, (2005) 2 SCC 42, the Hon’ble Supreme Court has observed as follows - “18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law….” 11. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in its schedule, and S.2 (xxiii-a) defines a small quantity as the quantity lesser than the quantity specified in the Page No.# 5/9 schedule. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One Lac, and bail is subject to the riders mandated in S.37 of NDPS Act. 12. In the present case, as per the contentions of the State, the quantity of substance seized is commercial quantity. Given the legislative mandate of S.37 of NDPS Act, the Court can release a person, accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after passing its rigors. Section 37 of the Act is extracted as under - “37. Offences to be cognizable and non-bailable. (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2[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 Page No.# 6/9 believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail." 13. Reading of Section 37(1)(b)(ii) mandates that two conditions are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail. 14. The first condition is to provide an opportunity to the Public Prosecutor and clear his stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence and that during bail he is not likely to commit any offence. If either of these two conditions is not fulfilled, the ban on granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. Be that as it may, if such a finding is arrived at by the Court, it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions, the reasonable grounds for believing that during the bail period, the accused is not guilty of such an offence, the Court still cannot give a finding or assurance that the accused is not likely to commit any such crime. Thus, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case. Page No.# 7/9 15. Some Judicial precedents on S. 37 of NDPS ACT - a) In Union of India v. Merajuddin, (1999) 6 SCC 43, Hon’ble Supreme Court while cancelling the bail, observed as follows- “The High Court appears to have completely ignored the mandate of Sec. 37 of the Narcotic Drugs and Psychotropic Substances Act while granting him bail. The High Court overlooked the prescribed procedure." b) In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, it was held that since the quantity involved was commercial, as such High Court could not have and should not have passed the order under sections 438 or 439 CrPC, without reference to Section 37 of the NDPS Act. c) In Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738, the Hon’ble Supreme Court has observed as follows- “7. ....Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are :- (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a Page No.# 8/9 person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail. 8. There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail. 9. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court.” 16. Moreover, this is the second bail application filed by the petitioners. It is well settled by Hon’ble Supreme Court in catena of decisions that subsequent bail application is maintainable only when there is change of circumstance in favour of the accused. Reference in this context can be made to a decision in State of Tamil Nadu Vs. S.A. Raja reported in (2005) 8 SCC 380. Here in this case, admittedly, except the length of detention, no change of circumstance has taken place in favour of the accused/petitioners. 17. In the case of NCB Vs. Mohit Agarwal reported in (2022) O Supreme (DC) 619, it was held by the Hon’ble Supreme Court that the length of period of his Page No.# 9/9 custody of the fact that the charge-sheet has been filed and that the trial has been commenced are by themselves not consideration that can be treated as persuasive ground for granting relief to the accused u/s 37 of the NDPS Act. That being so, the length of detention, to the considered opinion of this Court, can neither be a change of circumstance in favour of the accused petitioners nor be it a ground of releasing the accused/petitioners on bail. 18. It is an admitted fact the quantity of contraband substance recovered from the possession of the accused petitioners are of commercial quantity and as such the embargo u/s 37 of the NDPS Act will come into play here in this case. Moreover, from the materials available on the record as well as the submission of learned counsel for the accused petitioners, the court is unable to derive its satisfaction that the accused petitioners are not guilty of the offence and they will not commit similar offence while on bail. 19. In view of the above, this Court is not inclined to grant bail to the accused petitioners. Hence, prayer for bail is rejected. However, the trial court is directed to take much more initiative to expedite the trial of the case, preferably within 6(six) months. If the trial is not concluded within such period, the petitioners are at liberty to approach before the trial court to consider their bail application. 20. With the above observation, the bail application is disposed of. JUDGE Comparing Assistant